11 .J ^" II I aiipi 11 ■ I.J 




UlB RMY O F CONGRESS. 

||^^F |w¥i 1^0. 



i UNITED STATES OP AME'R^ 



ERICA.! 



Pacific Coast 



COLLECTION LAWS 

A SUMMARY OF THE 

LAWS OF CALH^OENIA, NEVADA, OREGON, WASHINGTON 
TERRITORY, IDAHO, MONTANA, UTAH, WYOMING, ARI- 
ZONA, AND BRITISH COLUMBIA, AND OF THE UNITED 
STATES, IN RELATION TO BANKRUPTCY; 

ALSO, 

THE JURISDICTION OF U. S. COURTS, 

DEPAHrrylENT. Ij 



THE NAMES OF RELIABLE ATTORNEYS IN THE PRINCIPAL 
CITIES AND TOWNS THROUGHOUT THE PACIFIC COAST. 



J. H. JELLETT, 

Attorney at Law, 



V r. L 



fll]^^ 



SAN FRANCISCO: 

BACON & COMPANY, BOOK AND JOB PRINTERS 

Corner of Clay and Sansome Streets. 

18T6. 



f 



Z^ 



^^ 






Entered according to Act of Congress in tlie year 1875, by 

J. H. JELLETT, 
In the office of the Librarian of Congress at Washington, D, C 



PREFACE. 



Having for upwards of six years been in charge of the Law and 
Collection Department of " The Mercantile Agency " of K. G. 
Dun & Go., San Francisco, the compiling of this work has sug- 
gested itself to me as important to Bankers, Merchants, and Man- 
ufacturers having business transactions in the Pacific States and 
Territories, including British Columbia. Further, it has been 
prepared with a view to aid Attorneys and Notaries in matters 
arising outside of their own State or Territory. 

I have endeavored to give a concise statement of the laws relat- 
ing to the collection of debts, together with the names of carefully 
selected attorneys ; and in compiling the work have been assisted 
by the following named practicing attorneys : 

DoLPH, Bronough, Dolph & Simon Portland, Oregon. 

Bishop & Sabin Pioche, Nevada. 

Lewis Burnbs Salt Lake City, Utah. 

Hon. James K. Kennedy . . Walla Walla, Washington Territory. 

D. E. CuLLEN Helena, Montana. 

E. P. Johnson Cheyenne, Wyoming. 

Jonas W. Brown Idaho City, Idaho. 

M. W. T. Drake, of Drake & Jackson. Victoria, B. C. 

J. H. JELLETT. 

San Francisco, January, 1876. 



CONTENTS. 



Part I, 



A-TTORNEYS. 



Part II. 

JURISDICTION OF U. S. COURTS AND BANKRUPTCY 
PROCEEDINGS. 

CHArTER I. Courts and their Jurisdiction 19 

II. Bankruptcy 21 



Part III. 



OALIFORNIA, 



Chapter I. Courts and their Jurisdiction 29 

II. Terms of Courts, When and Where Held 32 

in. Place of Trial of Civil Actions 35 

IV. Limitation of Civil Actions 39 

V. Parties to Suits — Commencement of Actions 42 

VI. Form of Civil Actions — Pleadiags 46 

VII. Attachments 51 

Vm. Claim and Delivery of Personal Property 56 

IX. Arrest and Bail 58 



CONTENTS. 5 

Chapter X. Injunctions 60 

XI. Judgments and Judgment Liens 60 

Xn. Execution — Sale and Redemption 67 

XIII. Proceedings Supplementary to Execution 74 

XIV. Costs 76 

XV. Appeals in Civil Actions 77 

XVI. New Trials 82 

XVII. Estates of Deceased Persons 83 

XVIII. Descents 88 

XIX. Liens of Mechanics and others upon Real Property 91 

XX. Liens for Salaries and Wages 94 

XXI. Arbitrations 95 

XXII. Homesteads 95 

XXIII. Corporations 97 

XXIV. Mode of taking Testimony of Witnesses 99 

XXV. Judicial Records, How Proved 100 

XXVI. Acknowledgments 102 

XXVII. Partnerships 105 

XXVni. Married Women .....'. 108 

XXIX. Minors 110 

XXX, Stoppage in transit Ill 

, XXXI. Bills of Lading 112 

XXXIL Interest 112 

XXXin. Common Carriers 113 

XXXIV. Mortgages of Personal Property 114 

XXXV, Pledge 116 

XXXVI. Guarantee and Suretyship 117 

XXXVn. Sale 119 

XXXVni. Contracts 120 

XXXIX. Negotiable Instruments 121 

XL, Principal and Agent 129 



Part IV. 



Chapter I, Courts — Jurisdiction and Terms of Courts 131 

TT. Time allowed to Answer — Service by Publication — Place 

of Trial 134 

in. Limitation of Actions 135 

IV, Attachments 137 

V. Arrest in Civil Actions 137 

VT. Judgments and Judgment Liens 138 

Vn, Executions, Exemptions, Sale and Redemption 139 

Vin. Proceedings Supplementary to Execution 141 

IX. Security for Costs 142 



CONTENTS. 

Chapter X. Appeals , 142 

XI. Estates of Deceased Persons 143 

XII. Homesteads 144 

Xm. Of Witnesses and Depositions 145 

XIV. Judicial Records, How Proved 148 

XV. Acknowledgments 149 

XVI. Affidavits, before whom to be taken 150 

XVII. Limited Partnerships 151 

XVIII. Married Women 152 

XIX. Corporations 152 

XX. Chattel Mortgages 153 

XXI. Interest and Usury 153 

XXII. Promissory Notes and Bills of Exchange 154 

XXIII. Mortgages 154 



Part V. 



OREaON. 



Chapter I. Courts and their Jurisdiction , 155 

n. Terms of Courts, When and Where Held 156 

HI. Commencement of Suits 158 

IV, Place of Trial of Civil Actions 159 

V. Limitation of Actions 159 

VI. Attachments 161 

VII. Arrest in Civil Actions 161 

VHI. Judgments and Judgment Liens 162 

IX. Executions, Exemptions, Sale and Redemption 163 

X. Proceedings Supplementary to Execution 164 

XI. Security for Costs 164 

XII. Appeals 165 

XIII. Estates of Deceased Persons 166 

XIV. Descent of Real Property 167 

XV. Descent of Personal Property 168 

XVI. Homesteads and Dower 169 

XVII. Depositions 169 

XVIII. Judicial Records 171 

XIX. Acknowledgments 171 

XX. Limited Partnerships 172 

XXI. Married Women .. .' 173 

XXn. Corporations ^ 174 

XXIII. Chattel Mortgages 174 

XXIV. Interest and Usury 175 



CONTENTS. 



Part VI. 
XJT^EE. 

Chai'ter I. The Courts and their Jurisdiction 177 

II. The Terms of Courts, and Places of Holding same 178 

m. Commencement of Suits, and Time allowed Defendants to 

Plead 178 

IV. Limitations of Actions 179 

V. Attachments 179 

VI. Arrests in Civil Actions 180 

Vrr. Judgments aDd Judgment Liens 181 

VIII. ExecTxtions, Exemptions, Sales and Redemption 182 

IX. Proceedings in Aid of Executions 184 

X. Security for Costs 185 

XI. Appeals 186 

XII. Estates of Deceased Persons 187 

XIII. Homesteads 188 

XIV. Depositions 189 

XV. Judicial Kecords, How Proven 191 

XVI. Acknowledgments 192 

XVII. Partnerships 193 

XVni. Married Women 194 

XIX. Corporations 194 

XX. Chattel Mortgages 195 

X KI, Interest and Usury 195 



Part VII. 



Chapter I. Courts, Their Jurisdiction and Terms 197 

II. Commencement of Actions 198 

HI. Place of Trial of Civil Actions 199 

IV. Limitations of Civil Actions 200 

V. Attachments 202 

VI. Arrest in Civil Actions 203 

VII. Judgments and Judgment Liens 204 

Vni. Executions, Exemptions, Sale and Redemption 205 

IX. Proceedings Supplementary to Execution 208 

X. Security for Costs 208 



O CONTENTS. 

Chapter XI. Appeals in Greneral 209 

XII. Homesteads 210 

Xin. Estates of Deceased Persons 210 

XIV. Depositions o . « 213 

XV. Judicial Records 214 

XVI. Acknowledgments 215 

XVII. Limited Partnerships .216 

XVEII. Married Women 217 

XIX. Corporations 218 

XX. Chattel Mortgages 219 

XXI. Interest and Usury 219 

XXII. Affidavits 220 

XXin. Sole Traders 220 



Part VIII. 



Chapter I. Courts and their Jurisdiction 223 

n. Terms of Courts, "When and Where Held 224 

nX Commencement of Actions, Time to Answer, Place of Trial . 224 

IV. Limitation of Actions 225 

V. Attachments .226 

VI. Arrest in Civil Actions 227 

Vn. Judgment Liens 228 

Vlii. Executions, Sale, Redemption and Exemptions 228 

IX. Proceedings in aid of Executions 230 

X. Security for Costs 230 

XL Appeals 231 

XH. Estates of Deceased Persons 231 

Xin. Descents and Distribution of Property 232 

XIV. Depositions 235 

XV. Judicial Records 236 

XVI. Acknowledgments , 236 

XVII. Limited Partnerships. 237 

XVin. Married Women , 238 

XIX. Chattel Mortgages 238 

XX. Interest and Usury 239 



CONTENTS. 



Part IX, 



MONTA.lSrA. 



Chapi^r I. 

n. 
ni. 

IV. 
V. 

VI. 
VII. 

vin. 

IX. 
X. 
XI. 

XII. 



Courts, their Jurisdiction and Terms 241 

Time allowed Defendant to Answer — Place of Trial of 

Civil Actions 242 

Limitation of Actions 243 

Attachments — Arrests in Civil Cases 244 

Judgment Liens — Executions, Exemptions, Sale and Re- 
demption 245 

Proceedings Supplementary to Executions 247 

Security for Costs — Appeals 247 

Estates of Deceased Persons — Homesteads ,248: 

Depositions — Judicial Records — Acknowledgments , . 248 

Limited Partnerships 249^1 

Married Women 250 

Corporations — Chattel Mortgages — Interest , , . . ........ . .250,- 



Part X. 

WASHINGTON TERRITORY. 



Chapter I. Courts and their Jurisdiction 253 

n. Terms of Courts, When and Where Held 254 

III. Commencement of Suits — Time allowed to Answer 255 

IV. Place of Trial of Civil Actions 256 

V. Limitation of Actions 257 

VI. Attachments 258 

VII. Arrest in Civil Actions 260 

Vm. Judgments and Judgment Liens 261 

IX. Executions, Exemptions, Sales and Redemptions .... .... .262 

X. Proceedings Supplementary to Execution 265 

XL Security for Costs 265 

XII. Appeals and Writs of Error 266 

XIII. Estates of Deceased Persons 266 

XIV. Homesteads 267 

XV. Depositions 268 

XVI. Judicial Record of other States, How Proved 269 

XVII. Acknowledgments 269 

XVin. Limited Partnerships 271 

XIX. Married Women 271 

XX. Corporations 271 

XXI. Chattel Mortgages 272 

XXn. Interest 272 



10 CONTENTS. 

Part XI 

Chapi'ER I. Courts and their Jurisdiction 273 

II. Terms of Courts, When and Where Held 274 

III. Commencement of Suits 275 

IV. Place of Trial of Civil Actions 276 

V. Limitation of Actions 278 

YI. Attachments 280 

VII. Arrest in Civil Actions 281 

Vm. Judgments and Judgment Liens 282 

IX. Executions, Exemptions, Sale and Kedemption 283 

X. Proceedings Supplementary to Execution 284 

XI. Estates of Deceased Persons 285 

XII. Affidavits and Depositions 287 

XIII. Acknowledgments 287 

XIV. Married Women 289 

XV. Chattel Mortgages , 289 

XVI. Interest , 290 

XVII. Bills of Exchange - 291 



Part XII. 

BRITISH: oolum:bia.. 

Chapter I. Courts, their Jurisdiction and Terms 293 

II. Commencement of Suits 294 

III. Limitation of Actions 295 

IV. Attachments — Arrest in Civil Actions 296 

V. Judgments and Judgment Liens 296 

VI. Executions, Exemptionsj Redemption, Sale 297 

VII. Security for Costs 297 

VIII. Appeals 298 

IX. Estates of Deceased Persons 298 

X. Homesteads 299 

XI. Depositions. 299 

XII. Judicial Records — Acknow^ledgments 299 

Xni. Limited Partnerships 800 

XIV. Married Women , 300 

XV. Mortgages 301 

XVI. Interest and Usury 301 

XVII. Land Laws. 302 



Paet I. 



ATTORNEYS, 



THE FOLLOWING ARE RECOMMENDED AS RELIABLE. 




CALIFORNIA. 


County. 


Residence. 


Name. 


Alameda 


Oakland 

Livermore .... 
Pleasanton . . . 


J. C. Plunkett. 
E. Aubury. 
J. R. Palmer. 

Also Notary Public. 


Amador 


Jackson 


J. M. Porter. 


Butte 


Oroville 

Chico 


John C. Gray. 
Park Henshaw. 


Colusa 


Colusa 


John T. Harrington. 


Contra Costa. . 


Martinez 

Antioch 


Mills & Jones. 
James T. Cruiksliank. 


Del Norte 


Crescent City . 


W. A. Hamilton. 


El Dorado .... 


Placerville .... 


George G. Blanchard. 


Fresno 


Fresno 


H. S. Dixon. 


Humboldt .... 


Eureka 


James Hanna. 



12 



ATTORNEYS. 

CALIFORNIA— Continued. 



[Part 1. 



County. 


Residence. 


Name. 


Inyo 


Independence . 
Bakersfield . . . 


Reddy & Conklin. 
J. W. Freeman. 


Kern 


Lake 


Lakeport 


A. P. McCarty. 


Lassen 


Susanville .... 


J. S. Chapman. 


Los Angeles. . 


Los Angeles. . 


Henry T. Hazard. 


Marin 


San Rafael .... 


Hepburn Wilkins. 


Mariposa 


Mariposa 


John M. Corcoran. 


Mendocino . . . 


Ukiah 


Thos. L. Carothers. 


Merced 


Merced 


Samuel C. Bates, 

Collector. 


Modoc 


Dorris Bridge. 


Geo. F. Harris. 


Monterey 


Salinas 


M. Farley. 


Napa 


Napa , . . 


R. Burnell. 


Nevada 


Nevada City. . 
Grass Valley . . 
Truckee 


Jno. I. Caldwell. 

A. J. Ridge. 

C. F. McGlashan. 


Placer 


Ophir, 

(Near Auburn.) 


James Moore. 


Plumas 


Quincy 

La Porte 


J. D. Goodwin. 
G. G. Clough. 


Sacramento . . . 


Sacramento . . . 


Edgerton, Tubbs & 

^"r^lc. Successors to Beatty 
^Oie, & Denson. 



Part 1.] 



ATTORNEYS. 

CALIFORNIA— Continued. 



13 



County. 


Residence. 


Name. 


San Benito .... 


Hollister 


N. C. Briggs. 


San Bernardino 


San Bernardino 


H. C. Rolfe. 


San Diego .... 


San Diego .... 


Chase & Leach. 


San Francisco . 


San Francisco. 


Campbell, Fox & Camp- 
bell. 
E. H. Rixford. 


San Joaquin . 


Stockton 


Jos. M. Cavis. 


San Luis Obis- 
po 


San Luis Obis- 
no 


Harrison & McMurtry. 
Geo. W. Fox. 


San Mateo .... 


Redwood City . 


Santa Barbara. 


Santa Barbara 


Jarrett T. Richards. 


Santa Clara . . . 


San Jose . 

Gilroy 


C.D.Wright. 
W. W. Hoover. 


Santa Cruz ^ . . 


Santa Cruz. . . . 
Watsonville . . . 


E. L. Williams. 
J. A. Barham. 


Shasta 


Shasta 


Ephraim Garter. 


Sierra 


Downieville . . . 


E. Barry. 


Siskiyou 


Yreka 


E. Steele. 


Solano 


Suisun 

Vallejo 


Joseph McKenna. 
S. G. Hilborn. 


Sonoma 


Santa Rosa . . . 
Healdsburg . . . 


James H. McGee. 
H. C. Firebaugh. 



14 



ATTORNEYS. 

CALIFORNIA— Continued, 



[Part 1. 



County. 


Residence. 


Name. 


Sonoma 


Petaluma 


W. D. Bliss. 


Stanislaus .... 


Modesto 


A. Hewel. 


Sutter 


Yuba City... 


Stabler & Bayne. 


Tehama 


Red Bluff 


W. Henry Jones. 


Tulare 


Visalia ....... 


Brown & Daggett. 


Tuolumne .... 


Sonora 


C. L. Street. 


Ventura 


San Buenaven- 
tura 


Henry Robinson. 


Yolo 


Woodland .... 


C. S. Frost. 


Yuba 


Marysville .... 


Van Clief & Cowden. 




NEVAT) 


A. 


County. 


Eesidence. 


Name. 


Douglas 


Genoa 


D. W. Virgin. 


Elko 


Elko ........ 


R. R. Bigelow. 


Esmeralda .... 


Aurora 


A. L. Greeley. 


Eureka 


Eureka 


Geo. W. Baker. 


Humboldt .... 


Winnemucca . 


W. L. French, 

Collector. 


Lander 


Austin 


Henry Mayenbaum. 


Lincoln 


Pioche 


Bishop & Sabin. 



Part 1.] 



ATTORNEYS. 

NEVADA— Continued. 



15 



County. 


Residence. 


Name. 


Lyon 


Dayton 


Geo. W. Keith. 


Nye 


Belmont 


Williams & Owen. 


Ormsby 


Carson City . . . 


Wm. Patterson. 


Storey 


Virginia City . . 


W. E. F. Deal. 


Washoe 


P.eno 


C. W. Jones, 

Collector. 



OREOON. 



County. 


Residence. 


Name. 


Baker 


Baker City. . , . 


L. O. Sterns. 

Also Notary Public. 


Benton 


Corvallis 


F. A. Chenoweth. 


Clackamas .... 


Oregon City . . 


Johnson & Cowan. 


Coos 


Empire City . . 


D. L. Watson. 


Douglas 


Roseburg 


J. F. Watson. 


Jackson 


Jacksonville. . . 


H. K. Hanna. 


Lane 


Eugene City . . 


George B. Dorris. 


Linn 


Albany 


Powell & Flinn. 


Marion 


Salem 


Knight & Lord. 


Multnomah . . . 


Portland 


Dolph, Bronough, 
Dolph & Simon. 



16 



ATTORNEYS. 

OREGO^-^ Continued. 



[Part 1. 



County. 


Kesidence. 


Name. 


Polk 


Dallas. 


J. L. Collins. 
J. H. Turner. 


Umatilla 


Pendleton 


Union 


La Grande . . . 


B. W. Lichtenthaler. 


Wasco 


The Dalles . . . 


J. B. Condon. 


Washington. . . 


Hillsboro 


Thos. H. Tongue. 


Yam Hill 


La Fayette . . . 


H. Hurley. 



UTAH TERRITORY. 



County. 



Eesidence. 



^ Name. 



Salt Lake 
Box Elder 



Salt Lake City . Lewis Burnes. 
Corinne E. P. Johnson. 



^^^^ASHING^TON TERRITORY. 



County. 


Residence. 


Name. 


Clarke 

Jefferson 

King 


Vancouver. . . . 
Port Townserid 
Seattle 


Charles Brown, 

Collector. 

Judson & Kuhn. 
Leary & McNaught. 



Part 1.] ATTORNEYS. 

WASHINGTON TERRITORY— Continued. 



17 



County. 


Residknce. 


Name. 


Pierce 


Steilacoom . . . 


Jacob Hoover. 


Thurston 


Olympia 


John P. Judson. 


Walla Walla.. 


Walla Walla.. 


Kennedy & George. 

James K. Kennedy, 

Late Judge District Court, First 
Judicial District. 
Wyatt A. George. 



MOlSTTAlSrA TERRITORY. 



County. 



Residence. 



Name. 



Gallatin' 


Bozeman 


Sharp & Napton. 


Lewis & Clarke 


1 
Helena 


W. E. Cullen. 


Madison 


Virginia City . . 


Theo. Muffly. 



IDAHO TERRITORY. 



County. 


Residence. 


Name. 


Ada 


Boise City .... 
Idaho City .... 


H. E. Prickett. 


Boise 


Jonas W. Brown. 


Nez Perces . . . 


Lewiston 


J. M. Howe. 



18 



ATTORNEYS. 



[Part 1, 



ARIZONA TEE.RITOR.Y. 



County. 


Residence. 


N^ME. • 


Pima 


Tucson 


Farley & Pomroy. 



^\^YOMING^ TERRITORY. 



County. 


Residence. 


Name. 


Laramie 


Cheyenne 


E. P. Johnson. 



BRITISH COLUMBIA. 



District. 


Residence. 


Name. 


Victoria 


Victoria 


Drake & Jackson. 



Part II. 

JURISDICTION OF U. S. COURTS AND BANK- 
RUPTCY PROCEEDINGS. 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The Circuit Courts of the United States have jurisdiction — 

Of all suits of a civil nature at common law or in equity, where 
the matter in dispute, exclusive of costs, exceeds the sum or value 
of five hundred dollars, and an alien is a party, or the suit is be- 
tween a citizen of the State where it is brought and a citizen of 
another State : Provided^ that no Circuit Court shall have cog- 
nizance of any suit to recover the contents of any promissory note 
or other chose in action in favor of an assignee, unless a suit might 
have been prosecuted in such Court to recover the said contents if 
no assignment had been made, except in ca^e of foreign bills of ex- 
change. 

In all suits at law or in equity arising under the patent or copy- 
right laAYS of the United States. 

Of all suits by or against any banking association established in 
the district for which the Court is held, under any law providing 
for national banking associations. 

In matters of bankruptcy, a general superintendence and juris- 
diction. 

Any suit commenced in a State Court, when the amount in dis-' 
pute, exclusive of costs, exceeds the sum or value of five hundred 



20 JURISDICTION U. S. COURTS. [Part 2. 

dollars, to be made to appear to the satisfaction of said Court, may 
be removed, for trial, into the Circuit Court for the district where 
such suit is pending, next to be held after the fihng of the petition 
for such removal, in the cases following : 

1. When the suit is against an alien, or is by a citizen of the 
State wherein it is brought, and against a citizen of another State, 
on the petition of the defendant. 

2. When the suit is against an alien and a citizen of the State 
where it is brought, or is by a citizen of such State against a 
citizen of the same and the citizen of another State, it may be so 
removed, as against said alien or citizen of another State, upon the 
petition of such defendant. But such removal shall not take away 
or prejudice the right of the plaintiff to proceed at the same tim^ 
with the suit in the State Court, as against the other defendants. 

3. When a suit is between a citizen of the State in which it is 
brought and a citizen of another State, it may be removed on tlie 
petition of the latter, whether he be plaintiff or defendant, if he 
makes and files in said State Court an affidavit, stating that he has 
reason to believe, and does believe, that, from prejudice or local 
influence, he will not be able to obtain justice in such State Court. 

The District Courts of the United States have jurisdiction — 

In all suits by or against any association established under any law 
providing for national banking associations, within the district for 
which the Court is held. 

The District Courts are constituted Courts of Bankruptcy, and 
shall have, in their respective districts, original jurisdiction in all 
matters and proceedings in Bankruptcy. 

It also has jurisdiction of suits for the collection of the Internal 
Ee venue, and is the Court of Admiralty. 



Chap. 2.] BANKRUPTCY. 21 



Chapter II. 

IBANKRUPTCY. 

Involuntary Bankruptcy — Acts of Bankruptcy. 

When any person departs from the State, district, or territory 
of which he is an inhabitant, with intent to defraud his creditors ; 
or, being absent, shall, with such intent, remain absent ; or shall 
conceal himself to avoid the service of legal process in any action 
for the recovery of a debt or demand provable under the bank- 
ruptcy act ; or shall conceal or remove any of his property to avoid its 
being attached, taken, or sequestered on legal process ; or shall make 
any assignment, gift, sale, conveyance, or transfer of his estate, 
property, rights, or credits, either within the United States or else- 
where, with intent to delay, defraud, or hinder his creditors ; or 
who has been arrested and held in custody under, or by virtue of, 
mesne process or execution, issued out of any Court of the United 
States, or of any State, district, or territory within which such 
debtor resides or has property, founded upon a demand in its nature 
provable against a*bankrupt's estate under this act, and for a sum 
exceeding one hundred dollars, and such process is remaining in force 
and not discharged by payment, or in any other manner provided by 
the law of the United States or of. suqh State, district, or territory, 
applicable thereto, for a period of twenty days, or has been actually 
imprisoned for more than twenty days in a civil action founded on 
contract for the sum of one hundred dollars or upwards ; or who, 
being bankrupt or insolvent, or in contemplation of bankruptcy or 
insolvency, shall make any payment, gift, grant, sale, conveyance, 
or transfer of money, or other property, estate, rights, or credits, or 
confess judgment, or give any warrant to confess judgment, or 
procure his property to be taken on legal process, with intent to 
give a preference to one or more of his creditors, or to any person 
or persons who are or may be liable for him as indorsers, bail, 
sureties, or otherwise ; or with the intent by such disposition of his 
property to defeat or delay the operation of the bankruptcy act ; 



22 BANKRUPTCY. [Part 2. 

or who, being a bank, banker, broker, merchant, trader, manufact- 
urer, or miner, has fraudulently stopped payment, or being a bank, 
banker, broker, merchant, trader, manufacturer, or miner, has 
stopped or suspended and not resumed payment, within a period of 
forty days, of his commercial paper, (made or passed in the course 
of his business as such) or who, being a bank or banker, shall fail 
for forty days to pay any depositor upon demand of payment law- 
fully made, shall be deemed to have committed an act of bank- 
ruptcy, and shall be adjudged a bankrupt on the petition of one 
or more of his creditors, who shall constitute one-fourth thereof, at 
least, in number, and the aggregate of whose debts, provable under 
this act, amounts to at least one-third of the debts so provable : 
.Provided, that such petition is brought within six months after such 
act of bankruptcy. 

The petition of creditors may be sufficiently verified by the 
oaths of the first five signers thereof, if so many there be, and 
if any of the first five signers shall not reside in the district 
in which such petition is to be filed, the same may be signed and 
verified by the oath or oaths of the attorney or attorneys, agent 
or agents, of such signers ; and in computing the number of 
creditors, as aforesaid, who shall join in such petition, creditors 
whose respective debts do iiot exceed two hundred and fifty dollars 
shall not be received. But if there be no creditors whose debts 
exceed said sum of two hundred and fifty dollars, or if the requisite 
number of creditors holding debts exceeding two hundred and fifty 
dollars fail to sign the petition, the creditors having debts of a less 
amount shall be received for the purposes aforesaid. 

Voluntary Bankruptcy. 

Any person residing Avithin the jurisdiction of the United States, 
owing debts provable under the bankruptcy act, exceeding the 
amount of three hundred ^dollars, ma^ filehis petition in bankruptcy. 

Preferences and Fraudulent Conveyances. 

If any person, being insolvent, or in contemplation of insolvency, 
within- two months before the filing of the petition by or against 



Chap. 2.] BANKRUPTCY. 23 

him, with a view to give a preference to any creditor or person 
having a claim against him, or who is under any liability for him, 
procures any part of his property to be attached, sequestered,* or 
seized on execution, or makes any payment, pledge, assignment, 
transfer, or conveyance of any part of his property, either directly 
or indirectly, absolutely or conditionally, the person receiving such 
payment, pledge, assignment, transfer, or conveyance, or to be 
benefited thereby, or by such attachment, having reasonable cause 
to believe such person is insolvent, and knowing that such attach- 
ment, sequestration, seizure, payment, pledge, assignment, or con- 
veyance, is made in fraud of the provisions of the act, the same shall 
be void, and the assignee may recover the property, or the value 
of it, from the person so receiving it, or so to be benefited ; and if 
any person being insolvent, or in contemplation of insolvency or 
bankruptcy, within three months before the filing of the petition 
by or against him, makes any payment, sale, assignment, transfer, 
conveyance, or other disposition of any part of his property to any 
person who then has reasonable cause to believe him to be insolvent, 
or to be acting in contemplation of insolvency, and knowing that 
such payment, sale, assignment, transfer, or other conveyance is 
made with a view to prevent his property from coming to his as- 
signee in bankruptcy, or to prevent the same from being distributed 
under the bankruptcy act, or to defeat the object of, or in any way 
impair, hinder, impede, or delay the operation and efiect of, or to 
evade any of the provisions of, the bankruptcy act, the sale, assign- 
ment, transfer, or conveyance shall be void, and the assignee may 
recover the property or the value thereof, as assets of the bankrupt 
— and if such sale, assignment, transfer or conveyance is not made 
in the usual and ordinary course of business of the debtor, the 
fact shall be prima facie evidence of fraud. 

Per Cent, to be Paid by Bankrupt. 
"^ 

In cases of involuntary bankruptcy, the bankrupt is not re- 
quired to pay a percentage. of the claims proved against the estate 
in order to entitle him to a discharge. 

In cases of voluntary bankruptcy, no discharge shall be granted 
to a debtor whose assets shall not be equal to thirty per centum of 



24 BAiiKRUPTCY. [Part 2. 

the claims proved against his estate, upon which he shall be hable 
as principal debtor, without the assent of at least one-fourth of his 
creditors in number, and one-third in value. 

Proofs of Debts. 

Proofs of debts against the estate of the bankrupt, by or on be- 
half of creditors residing within the judicial district where the pro- 
ceedings in bankruptcy are pending, shall be made before one of 
the registers of the Court in said district, or before a notary pub- 
lic ; such proof to be certified by the notary and attested by his 
signature and official seal ; and by or on behalf of non-resident 
creditors, before any register in bankruptcy in the judicial district; 
where such creditors, or either of them, reside, or before any com- 
missioner of the Circuit Court authorized to administer oaths in any 
district, or before a notary public ; certified and attested as afore- 
said. 

The affidavit in proof of claim shall be made by the claimant, un- 
less he be absent from the United States, or is prevented by some 
other good cause from testifying, in which case the demand may be 
verified by the attorney or authorized agent of the claimant. 

When a claim is presented for proof before the election of the 
assignee, and the judge entertains doubts of its vaUdity, or of the 
right of the creditor to prove it, and is of opinion that such validity 
or right ought to be investigated by the assignee, he may postpone 
the proof of the claim until the assignee is chosen — any person 
who, after the approval of the act, shall have accepted any prefer- 
ence, having reasonable cause to beheve that the same was made 
or given by the debtor, contrary to any provision of the act, shall 
not prove the debt or claim on account of which the preference was 
made or given ; nor shall he receive any dividend therefrom until he 
shall first * have surrendered to the assignee all property, money, 
benefit or advantage received by him'^nder such preference. 

When any person who, being bankrupt or insolvent, or in con- 
templation of bankruptcy or insolvency, shall make any payment, 
gift, grant, sale, conveyance or transfer of money or other property, 
estate, rights or credits, with intent to give a preference, and upon 



Chap. 2.] BANKRUPTCY. 25 

being adjudged a bankrupt, the assignee may recover back the 
money or property so paid, conveyed, sold, assigned, or transferred, 
contrary to the act ; provided, that the person receiving such pay- 
ment or conveyance had reasonable cause to believe that the debtor 
was insolvent, and knew that a fraud on the act was intended ; 
and such person, if a creditor, shall not, in case of actual fraud on 
his part, be allowed to prove for more than a moiety of his debt. 

Liens. 

The lien of a levy made under an execution, issued under a final 
judgment, obtained in good faith and without collusion, is preserved, 
provided such lien attached before petition in bankruptcy is filed ; 
but the lien is not preserved when it does not attach until after 
petition filed. . 

Discharge. 

At any time after the expiration of six months from the adjudi- 
cation of bankruptcy, or if no debts have been proved against the 
bankrupt, or if no assets have come to the hands of the assignee, 
at any time after the expiration of sixty days, and within one year 
from the adjudication of bankruptcy, the bankrupt may apply to 
the Court for a discharge from his debts, and the Court shall there- 
upon order notice to be given by mail to all creditors who have 
proved their debts, and by publication at least once a week in such 
newspapers as the Court shall designate, to appear on a day ap- 
pointed for that purpose, and show cause why a discharge should 
not be granted to the bankrupt. No discharge shall be granted, 
or, if granted, be valid, if the bankrupt has willfully sworn falsely 
in his affidavit attached to his petition, schedule, or inventory, or 
upon any examination in the course of the proceedings in bank- 
ruptcy, in relation to any material fact concerning his estate or his 
debts, or to any other material fact ; or if he has concealed any 
part of his estate or efi*ects, or any books or writings relating there- 
to ; or if he has been guilty of any fraud or negligence in the care, 
custody, or delivery to the assignee of the property belonging to 
him at the time of the presentation to him of his petition and in- 



26 BANKRUPTCY. [Part 2. 

ventory, excepting such property as he is permitted to retain under 
the provisions 'of the act ; or if he has caused, permitted, or suffered 
any loss, waste, or destruction thereof ; or if within four months 
before the commencement of such proceedings, he has procured 
his lands, goods, moneys, or chattels to be attached, sequestered, or 
seized on execution ; or if he has destroyed, mutilated, altered, or fals- 
ified any of his books, documents, papers, writings, or securities, or 
has made or been privy to the making of any false or fraudulent entry 
in any book of account or other document, with intent to defraud 
his creditors ; or has removed or caused to be removed any part of 
his property from the district, with intent to defraud his creditors ; 
or if he has given any fraudulent preference contrary to the pro- 
visions of this act, or made any fraudulent payment, gift, transfer, 
conveyance, or assignment of any part of his property, or has lost 
any part thereof in gaming, or has admitted a false or fictitious 
debt against his estate ; or if, having knowledge that any person 
has proved such false or fictitious debt, he has not disclosed the 
same to his assignee within one month after such knowledge ; or if, 
being a merchant or tradesman, he has not, subsequently to the 
passage of the act, kept proper books of account ; or if he, or any 
person in his behalf, has procured the assent of any creditor to the 
discharge, or influenced the action of any creditor at any stage of 
the proceedings, by any pecuniary consideration or obligation ; or 
if he has, in contemplation of becoming bankrupt, made any pledge, 
payment, transfer, assignment, or conveyance of any part of his 
property, directly or indirectly, absolutely or conditionally, for the 
purpose of preferring any creditor or person having a claim against 
him, or who is or may be under liability for him, or for the purpose 
of preventing the property from coming into the hands of the 
assignee, or of being distributed under the act in satisfaction of his 
debts ; or if he has been convicted of any misdemeanor under this 
act, or has been guilty of any fraud whatever, contrary to the true 
intent of the act : and before any discharge is granted, the bank- 
rupt shall take and subscribe an oath to the effect that he has not 
done, suffered, or been privy to any act, matter, or thing specified 
in the act as a ground for withholding such discharge, or as invali- 
dating such discharge, if granted. . 



Chap. 2.] BANKRUPTCY. 27 

Composition, 

A meeting of creditors may be called under the direction of the 
Court, and the creditors resolve that a composition proposed by the 
debtor shall be accepted in satisfaction of the debts due to them 
from the debtor. And such resolution shall, to be operative, have 
been passed by a majority in number, and three-fourths in value of 
the creditors of the debtor assembled at such meeting, either in 
person or by proxy, and shall be confirmed by the signatures thereto 
of the debtor and two-thirds in number and one-half in value of all 
the creditors of the debtor. And in calculating a majority for the 
purposes of a composition, creditors whose debts amount to sums 
not exceeding fifty dollars shall be reckoned in the majority in 
value, but not in the majority in number ; and the value of the debts 
of secured creditors above the amount of such security, to be de- 
termined by the Court, shall, as nearly as circumstances admit, be 
estimated in the same way. And creditors whose debts are fully 
secured shall not be entitled to vo^e upon or to sign such resolution, 
without first relinquishing such security for the benefit of the estate. 

The resolution must be approved by the Court and recorded, and 
until so approved and recorded shall be of no validity. 

The provisions of a composition accepted by such a resolution 
shall be binding on all the creditors whose names and addresses, 
and the amounts of the debts due to whom, are shown in the state- 
ment of -the debtor, produced at the rneeting at which the resolu- 
tion shall have been passed ; but shall not affect or prejudice the 
rights of any other creditors. 



Part III. 



STATE OF CALIFORNIA 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The Supreme Court of the State of California has original 
and appellate jurisdiction. Ita original jurisdiction extends — 

To the issuance of writs of mandamus, certiorari, prohibition, and 
habeas corpus, and all other writs necessary or proper to the com- 
plete exercise of its appellate jurisdiction. 

Its appellate jurisdiction extends — 

1. To all civil actions for relief formerly given in courts of 
equity. 

2. To all civil actions in which the subject of litigation is not 
capable of pecuniary estimation. 

3. To all civil actions in which the subject of litigation is capa- 
ble of pecuniary estimation, which involve the title or possession of 
real estate, or the legality of any tax, impost, assessment, toll or 
municipal fine, or in which the demand exclusive of interest, or the 
value of the property in controversy, amounts to three hundred dol- 
lars. • 

4. To all special proceedings. 

5. To all cases arising in the Probate Courts. 



30 CALIFORNIA. [Part 3. 



District Courts. 

The jurisdiction of these Courts extends — 

1. To all civil actions for rehef formerly given in courts of equity. 

2. To all civil actions in which the subject of litigation is not 
capable of pecuniary estimation. 

3. To all civil actions (except actions of forcible entry and de- 
tainer) in which the subject of htigation is capable of pecuniary es^ 
timation, which involve the title of possession of real estate, or the 
legality of any tax, impost, assessment, toll or municipal fine, or in 
which the demand, exclusive of interest, or the value of the prop- 
erty in controversy, amounts to three hundred dollars. 

4. To special proceedings not within the jurisdiction of the 
County and Probate Courts. 

5. To the issuance' of writs of mandamus, certiorari, prohibition, 
habeas corpus, and all writs necessary to the exercise of its powers. 

County Courts 

Have original and appellate jurisdiction. Their original jurisdic- 
tion extends — 

1. To actions to prevent or abate a nuisance. 

2. To actions of forcible entry and detainer. 

3. To proceedings in insolvency. 

4. To all special cases or proceedings in which the law, giving 
the remedy or authorizing the proceedings, confers the jurisdiction 
upon it. 

5. To the issuance of writs of habeas corpus, and all writs neces- 
sary to the exercise of its powers. 

6. To inquire, by the intervention of a grand jury, of all pubHc 
offenses committed, or triable in the county. 

7. Their appellate jurisdiction extends to all cases arising in 
Justices' or Police Courts. 



Chap. 1.] ♦ CALIFORNIA. 31 



Probate Courts. 

Probate Courts' have jurisdiction — 

1. To open and receive proof of last wills and testaments, and 
to admit them to probate. 

2. To grant letters testamentary, of administration and of guar- 
dianship, and to revoke the same. 

3. To appoint appraisers of estates of deceased persons. 

4. To compel executors, administrators and guardians to render 
accounts. 

5. To order the sale of property of estates, or belonging to 
minors. 

6. To order the payment of debts due from estates. 

7. To order and regulate all distributions and partitions of prop- 
erty, or estates of deceased persons. 

8. To compel the attendance of witnesses, and the production of 
title deeds, papers, and other property of an estate, or of a minor. 

9. To make such orders as may be necessary to the exercise of 
the powers conferred upon it. 

10. To exercise jurisdiction in all matters of probate and guar- 
dianship. 

Justices' Courts. 

The civil jurisdiction of these Courts within their respective 
townships or cities extends — 

1. To an action arising on contract, for the recovery of money 
only, if the sum claimed, exclusive of interest, does not amount to 
three hundred dollars. 

2. To an action for damages for injury to the person, or for tak- 
ing or detaining personal property, or for injuring personal prop- 
erty, or for an injury to real property, where no issue is raised by 
the answer involving the plaintiff's title or possession of the same, 
if the damages claimed do not amount to three hundred dollars. 

3. To all actions for a fine, penalty, or forfeiture, not amounting 
to three hundred dollars, given by statute or the ordinance of an 
incorporated city or town. 

4. To an action upon a bond or undertaking conditioned for the 



32 CALIFORNIA. « [Part 3. 

payment of money, not amounting to three hundred dollars, though 
the penalty exceed that sum ; the judgment to be given for the sum 
actually due. When the payments are to be made by installments, 
an action may be brought for each installment as it falls due. 

5. To an action to recover the possession of personal property, 
when the value of such property does not amount to three hundred 
dollars. 

6. To take and enter judgment on the confession of a defend- 
ant, when the amount confessed, exclusive of interest, does not 
amount to three hundred dollars. 

The jurisdiction above does not extend, however — 

1. To a civil action in which the title or possession of real prop- 
erty is put in issue. 

2. Nor to an action or proceeding against ships, vessels, or boats, 
when the suit or proceeding is for the recovery of seamen's wages 
for a voyage performed in whole or in part without the waters of 
this State. 



Chapter II. 

TERMS OF COURTS, WHEN AND WHERE HELD. 

Supreme Court. 

There must be four terms in each year for the hearing of causes, 
to commence on the second Monday of January, April, July, and 
October. The January and July terms are held at the city of 
San Francisco. The April and October terms are held at the city 
of Sacramento. Additional terms may be held by order of the 
Court. 



Chap. 2.] 



CALIFORNIA. 



District Courts. 



The State is divided into twenty judicial districts. 
There is a District Court in each of the judicial districts, and 
Court is held at the county seat of each county, as follows : 



Alameda 

Alpine 

Amador 

Butte 

Calaveras 

Oi ilnsa 

(""niitra Costa . . . 

DplNorto 

El Dorado 

Fi-esno 

Humboldt 

Inyo 

Kern 

Klamath 

J^ake 

Lassen 

Los Angeles . . . 

Muriu 

Mariposa 

Mf>ndofiuo 

M«rced 

Modoc 

Jlono 

Monterey 

Napa . 

Nevada 

Placer 

Plumas 

Sacramento . . . . 

San Benito 

Snn Bernardino. 
San Diego 

r 

San Francisco^ 



San Joaquin 

San Luis Obispo 
San Mateo 



Santa Barbara. 
Santa Clara . . . 

Santa Cruz 

Shasta 

Sierra 

Siskiyou 



Solsno 

Sonoma . . . 
Stanislaits. 
Sutter 



Tehama... 
Trinity.... 
Tulare .... 
Tuolumne. 
Ventura... 

Yclo 

Yuba 



Third .... 
Sixteenth 
Eleventh. 
Second . . . 
Eleventh. 
Tenth .... 
Fifteenth 
Eighth... 
Eleventh. 

Thirteenth. 

Eiglith 

Sixteenth . . 
Sixteenth . . 

Eighth 

Seventh 

Second.. .. 
Seventeenth 
Seventh .... 
Thirteenth. 
Seventh .... 
Thirteenth . 

Ninth 

Sixteenth . . 
Twentieth . 

Seventh 

Fourteenth. 
Fourteenth . 

Second 

Sixth 

Twentieth . 
Eighteenth. 
Eighteenth. 



Fifth . . . 
First... . 
Twelfth. 



First 

Twentieth 
Tv.-entieth 

Ninth 

Tenth 

-Ninth 



Seventh . 
Seventh. 
Filth ... 
Tenth.. . 



Second 

Ninth 

Thirteenth. 

Fifth , 

First 

Sixth 

Tenth 



WHKN HELD. 



3d Monday February, June, and October. 

1st Monday April and October. 

2d Jlonday March, June, September, and December. 

1st Monday March ; 3d Monday November ; 2d Monday July, 

2d Monday January, April, July, and October. 
4th Monday April ; 2d ]Monday August ; 1st Monday December. 

3d Tuesday April, July, and November. 

2d aionday May, August, and November. 

2d Monday February, and May ; 3d Monday August, and No- 
vember. 

3d Monday February, June, and October. 

2d Monday March, June, September, and December. 

1st Monday May and November. 

3d Monday May and November. 

2d Monday April, July, and October. 

3d Monday April ; 2d Monday November. 

2d Monday June ; 2d Monday September. 

1st Monday February, May, Aiigust, and November. 

1st Monday March and July; 3d Monday November. 

3d Monday April ; 3d Monday August ; 2d Monday December. 

2d Monday April ; 3d Monday July ; 1st Monday November, 

3d Monday March, July, and November. 

2d Monday Jiily ; 3d Monday October. 

3d Monday April and October. 

3d Monday March, July, and November. 

1st Monday February, June, and October. 

2d Monday March, Jime, September, and December. 

1st Monday February, May, August, and November. 
4:th Monday May ; 1st Monday October. 

1st Monday February, April, June, A.ugust, October, and De- 
cember. 

1st Monday April, August, and December. 

2d Monday March, June, September, and December. 

2d Monday January, April, July, and October. 
3d D. C — 3d Monday April, August, December. 4th— 1st 
aiouday February, ^lay, August, December. 12th — 1st Mon- 
day January, April, July, October. 15th— 1st Monday ]\Iarch, 
June, September, December. 19th — 1st Monday April, Au- 
gust, and December. * 

1st Monday February, May, August ; 3d Monday October. 

2d Monday May, Septeajber, and January. 

2d Monday February ; ith Monday May, August, and Novem- 
ber. 

3d Monday Mai*ch, July, and November. 

1st Monday January, May, and September. 

2d Monday Februaiy, June, and October. 

2d Monday March. June, and November. 

1st Monday April ; 2d Monday July ; ■ith Monday October. 

'3d Monday January, May, and September. At Lake City— 2d 
Mondaj' July. 

3d Monday January, May, and September, 

3d M )nday February, June, and October. 

2d Monday January, April, and September, 
rtth Monday February ; 3d Monday June ; 2d Monday ZSTovern- 

ber. 
4th Monday October ; 4th Monday January ; 1st Monday May. 

2d Monday April, August, and December. 

3d Monday Januarj^, May, and December. 

1st Monday March and July ; 3d Monday November. 

1st Monday March, July, and November. 

3d Monday January, May. and September. 

3d Monday January ; 3d Monday May ; 1st Monday October. 



3-i 



CALIFORNIA. 



[Part 8. 



County and Probate Courts. 

The terms of these Courts are held at the county seat of each 
county, as follows : 



Alameda 

Alpiue 

Amador . . 

Butte 

Calaveras 

Colusa 

Contra Costa. . . 

Del Norte 

El Dorado 

Fresno 

Humboldt 

Inyo 

Kern 

Klamath 

Lake 

Lassen 

Los Angeles 

Marin 

Mariposa 

Mendocino 

Merced 

Modoc 

Mono 

Monterey 

Napa 

Nevada 



Placer 

Plumas 

Sacramento 
San Benito. 



San Bernardino. 

San Diego 

•San Francisco. . 

San Joaquin 

San Luis Obispo 



San Mateo 

Sauta Barbara. 
Santa Clara. . . . 
Santa Cruz. . . . 
Shasta 



Sierra 

Siskiyou . . 
Siskiyou.., 

Solano 

Sonoma . . . 
Stanislaus . 

Sutter 

Tehama.. . 
Trinity.. . . 

Tulare 

Tuolumne . 
Ventura . . , 

Yolo 

Yuba 



COUNTY COURTS. 



1st Monday Jan., Apr., July ; 3d Monday Sept. 

1st Monday February, June, October 

1st Monday February, May, August, November 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday MHrch, June, September, Dec 

1st Monday Jan., April ; .3d Monday July, Oct. 

1st Monday March, August, November 

1st Monday April, Jaly, October 

2d Monday March, June, September, Dec. . . . 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch , May, July, Sept., Nov. 

1st Monday April, Jiily, October 

1st Monday January, April, July, October 

1st Monday February, May, August, November 

1st Monday Jan., Mch,, May, July, Sept,, Nov. 

3d Monday March, June, September. December 

1st Monday Jan., Mch., May, July, Sept., Nov 

1st Monday March, June, September, December 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday February, June, October 

1st Monday January, May, September 

1st Monday March, May, July, Sept., Nov 

1st Monday Mch., Sept., Dec. ; 3d Monday June 

1st Monday February, May, August, November 

Sessions may be held at Truckee at the discre- 
tion of the Judge. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday March, June,- September, Dec .... 

1st Monday January, April, July, October 

1st Monday February, May ; 3d Monday Aug- 
u-st ; 1st Monday November 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday Jan., Mch., May, July, Sept., Nov. 

1st Monday March, June ; 3d Mondaj' August ; 
1st Monday December 

2d Monday March, June, September, Dec 

1st Monday March, June, September, Dec 

3d Monday February, May, August, November 

1st Monday Jan., Mch., May, July, Sept.,, Nov, 

ist Monday January, May, September 



3d Monday April, June. Sept.; 2d Monday Dec. 
1st Monday Jan.. Mch., May, July, Sept., Nov. 

At Lake City 2d Monday of July 

3d Monday April, Axigust, December 

1st Monday January, April, July, October 

1st Monday Jan., Mch., May. July, Sept., Nov. 

1st Monday January, April, July, October 

1st Monday Jai>.,Mch., May, July, Sept., Nov. 
1st Mondiiy Jiin., Mch., May, July. Sept., Nov. 
1st Monday Mch., June, September, December 

1st Monday January, May, September 

1st Monday February, July, October 

1st Monday anuary, April, July,. October 

1st Monday Jan., April, July ; 2d Monday Oct. 



PROBATE COUETS. 



Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Coxirt. 
Same as Countj- Court. 
2d Jan., April, July, Oct. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. ^ 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
When necessity requires. 
Same as County Court. 
1st Monday each month. 
Same as County Court. 
1st Monday each month. 



Same as County Court. 
Same as County Court. 
Same as County Court. 

1st ]\[onday of each month, 
ith Monday of each month. 
Same as County Court. 
1st Monday of each month. 
Same as County Court. 

Same as County Court. 
Same as County Court. 
Same as County Court. 
1st Mondaj- of each month . 
Same as Coiinty Coiu't. 
1st Monday February, April. 

June, August, Oct., Dec. 
1st Monday of each month. 
Same as Countj^ Court. 

Same as County Court. 
1st Monday of each- month. 
Same as County Court. 
1st Monday of each month. 
Same as County Court. 
Same as County Court. 
Same as County Court. 
+th Monday of each month. 
When necessity requires. 
Same as Coimty Court. 
1st Monday of each month. 



Chap. 3.] CALIFORNIA. 35 



Justices' Courts. 

These Courts may be held at any place selected by the justice 
holding the same, in the township or city for which he is elected, 
and they are always open for the transaction of business. 

The Circuit Court of tiis Untied States — Dist.uct of 
California. 

The regular terms shall be held at San Francisco as follows : 
On the second Monday in February, July, and December of 

each year. 

The circuit judge may appoint special sessions of the Circuit 

Court, to be held at the place where the regular session is held. 

The District Court of the United States — District of 
California. 

The regular terms shall be held at San Francisco as follows : 
On the first Monday in April, on the second Monday in August, 
and on the first Monday in December. 

Whenever the judge fails to hold any regular term thereof, it 
shall be his duty, if it appears that the business of the Court re- 
quires it, to hold an intermediate term. The Court is always open 
for the transaction of business under ,the bankruptcy act. 



Chapter III. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the following causes must be tried in the county in 
which the subject of the action, or some part thereof, is situated : 
1. For the recovery of real property, or of an estate or interest 



36 CALIFORNIA. [Part -5. 

therein, or for the determination, in any form, of such right or in- 
terest, and for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property. 
Where the real property is situated partly in one county and 

partly in another, the plaintiff may select either of the counties, 
and the county so selected is the proper county for the trial of 
such action. 

Actions for the following causes must be tried in the county 
where the cause or some part thereof arose. 

1. For the recovery of a penalty or forfeiture imposed by stat- 
ute, except that when ifc is imposed for an offense committed on a 
lake, river, or other stream of water situated in two or more coun- 
ties, the action may be brought in any county bordering on such 
lake, river, or stream, and opposite to the place where the offense 
was committed. 

2. Against a public officer or person especially appointed to 
execute his duties, for an act done by him in virtue of his office, 
or against a person who, by his command, or in his aid, does any- 
thing touching the duties of such officer. 

Actions against counties may be commenced and tried in any 
county in the judicial district in which such county is situated, 
unless such actions are between counties, in which case they may 
be commenced and tried in any county not a party thereto. 

All other actions must be tried in the county in which the defend- 
ants, or some of them, reside at the commencement of the action ; 
or if none of the defendants reside in the State, or if residing in 
this State, the county in which they reside is 'unknown to the 
plaintiff, the same may be tried in any county which the plaintiff* 
may designate in his complaint ; and if the defendant is about to 
depart from the State, such action may be tried in any county 
where either of the parties reside, or where service is had. 

If the county in which the action is commenced is not the proper 
county for the trial thereof, the action may, notwithstanding, be 
tried therein, unless the defendant, at the time he appears and an- 
swers or demurs, files an affidavit of .merits, and demands in writing 
that the trial be had in the proper county. 



Chap. 3.] CALIFORNIA. 37 

The place of trial may be changed in the following cases : 

1. When the county designated in the complaint is not the 
proper county. 

2. When there is reason to believe that an impartial trial can- 
not be had therein. 

3. When the convenience of witnesses and the ends of justice 
would be promoted by the change. 

4. When from any cause the judge is disqualified for acting. 

Place of Trial of Actions in Justices' Courts. 

1. If there be no Justices' Courts for the township or city in 
which the defendant resides : in any city or township of the county 
in which he resides. 

2. When two or more persons are jointly, or jointly and several- 
ly, bound in any debt or contract, or otherwise jointly liable in the 
same action, and reside in different townships or different cities of 
the same county, or in different counties : in the township or city 
m which any of the persons liable may reside. , 

3. In case of injury to the person or property : in the town- 
ship or city where the injury was committed, or where the defend- 
ant resides. 

4. If for the recovery of personal property, or the value thereof, 
or damages for taking or detaining the same : in the township or city 
in which the property may be found, 'or in which the property was 
taken, or in which the defendant resides. 

5. When the defendant is a non-resident of the county : in any 
township or city wherein he may be found. 

6. When the defendant is a non-resident of the State : in any 
township or city in the State. 

7. When a person has contracted to perform an obligation at a 
particular place, and resides in another county, township or city ; in 
the township or city in which such obligation is to be performed, or 
in which he resides ; and the township or city in which the obliga- 
tion is incurred shall be deemed to be the township or city in which 
it is to be performed, unless there is a special contract to the con- 
trary. 



38 CALIFORNIA. [Part 3. 

8. When the parties voluntarily appear and plead without sum- 
mons : in any township or city in the State. 

9. In all other cases : in the township or city in which the de- 
fendant resides. 

The place of trial may be changed in the following cases : . 

1. When it appears to the satisfaction of the justice before 
whom the action is pending, by affidavit of either party, that such 
justice is a material witness for either party. 

2. When either party makes and files an affidavit that he be- 
lieves that he cannot have a fair and impartial trial before such 
justice, by reason of the interest, prejudice, or bias of the justice. 

3. When a jury has been demanded, and either party makes 
and files an affidavit that he cannot have a fair and impartial trial 
on account of the bias or prejudice of the citizens of the township or 
city against him. .. ^ . 

4. When from any cause the justice is disqualified from acting. 

5. When the justice is sick or unable to act. 

Probate Court. 

In what county wills must be proved and letters testamentary or 
of administration granted : 

1. In the county of which the deceased was a resident at the 
time of his death, in whatever place he may have died. 

2. In the county in which the deceased may have died, leaving 
estate therein, he not being a resident of the State. 

3. In the county in which any part of the estate may be, the 
deceased having died out of the State and not resident therein at 
the time of his death. 

4. In the county in which any part of the estate may be, the 
deceased not being a resident of the State, and not leaving estate 
in the county in which he died. 

5. In all other cases, in the county where application for letters 
is first made. 



Chap. 4.] CALIFORNIA. 89 



Chapter IV. 

LIMITATION OF CIVIL ACTIONS. 

The periods prescribed for the commencement of civil actions 

are as follows : 

Within five years : 

1. An action upon a judgment or decree of any Court of the 
United States or of any State within the United States. 

2. An action for mesne profits of real property. 

Within four years : 
An action upon any contract, obligation, or liability founded 
upon an instrument in writing executed in this State, (promissory 
notes included). 

Within three years : 

1. An action upon a liability created by statute, other than a 
penalty or forfeiture. 

2. An action for trespass upon real property. 

3. An action for taking, detaining, or injuring any goods or 
chattels, including actions for the specific recovery of personal 
property. 

4. An action for relief on the ground of fraud or mistake. In 
this case the time begins to run from, the discovery, by the ag- 
grieved party, of the facts constituting the fraud or mistake. 

Within two years : 

1. An action lipon a contract, obligation, or liability, not 
founded upon an instrument of writing, made within or out of this 
State, (accounts included). 

2. An action founded upon an instrument of writing executed 
out of this State, (promissory notes included). 

3. An action against a sheriff, coroner, or constable, upon a 
liability incurred by the doing of an act in his official capacity, 
and in virtue of his office, or by the omission of an official duty, 
including the non-payment of money collected upon an execution — 
except for an escape. 



40 CALIFORNIA. [Part 3. 

4. An action to recover damages for the death of one caused by 
the wrongful act or neglect of another. 

Within one year : 

1. An action upon a statute for a penalty or forfeiture, where 
the action is given to an individual, or to an individual and the 
State, except where the statute imposing it prescribes a different 
limitation. 

2. An action for libel, slander, assault, battery, false imprison- 
ment, or seduction. 

3. An action against a sherijff or other officer for the escape of a 
prisoner arrested or imprisoned on civil process. 

4. An action against a municipal corporation for damages for 
injuries to property caused by a mob or riot. 

Within six months : 
An action against an officer, or officer de facto— 

1. To recover any goods, wares, merchandise, or other property, 
seized by such officer in his official capacity as tax collector, or to 
recover the price or value of any goods, wares, merchandise, or 
other personal property so seized, or for damages for the seizure, 
detention, sale of, or injury to any goods, wares, merchandise, or 
other personal property seized, or for damages done to any person 
or property in making any such seizure. 

2. To recover stock sold for a dehnquent assessment, upon the 
ground of irregularity in the assessment, or irregularity or defect 
of the notice of sale, or defect or irregularity in the sale. 

No limitation : 
To actions for the recovery of money or other property depos- 
ited with any bank, banker, trust company, or savings and loan 

society. 

General provisions : 

The period of limitation begins to run from the time the cause 
of action accrues, or in other words, from the time when suit can 
be brought, 

A partial payment of an amount due under an agreement in 
writing, (promissory notes included) or under an agreement not 
in writing, (book accouitts included) does not prevent the statute 



Chap. 4.] CALIFORNIA. 41 

running ; but Avhere a balance is cine upon a mutual, open, and cur 
rent account, where there have been reciprocal demands between 
the parties, the statute begins to run from the last item proved in 
the account on either side. 

If when the cause of action, accrues against a person, he is out 
of the State, the action may be commenced within the time above 
limited, after his return to the State, and if, after the cause of 
action accrues, he departs from the State, the time of his absence is 
not part of the time hmited for the commencement of the action. 

If a person entitled to bring an action be, at the time the cause 
of action accrues, either within the age of majority, insane, im- 
prisoned on a criminal charge, or in execution under the sentence 
of a Criminal Court for a term less than for hfe, or a married 
woman, and her husband be a necessary party w^ith her in com- 
mencing such action, the time of such disability is not a part of 
the time limited. 

If a person entitled to bring an action die before the expiration 
of the time limited for the commencement thereof, and the cause 
of action survive, an action may be commenced by his representa- 
tives, after the expiration of that time, and within six months from 
his death. If a person, against whom an action may be brought, 
die before the expiration of the time limited for the commence- 
ment thereof, and the cause of action survive, an action may be 
commenced against his representatives after the expiration of that 
time, and within one year after the issuing of letters testamentary 
or of administration. 

When a person is an alien subject, or citizen of a country at 
war with the United States, the time of the continuance of the 
war is not part of the period limited for the commencement of the 
action. 

When the commencement of an action is stayed by injunction 
or statutory prohibition, the time of the continuance of the in- 
junction or prohibition is not part of the time limited for the com- 
mencement of the action. 

When a cause of action has arisen in another State, or in a for- 
eign country, and by the laws thereof an action thereon cannot 
there be maintained against a person by reason of the lapse of 



42 CALIFORNIA. [Part 3. 

time, an action thereon shall not be maintained against him in this 
State, except in favor of one who has been a citizen of this State, 
and who has held the cause of action from the time it accrued. 

No acknowledgment or promise is sufficient evidence of .a new 
or continuing contract, bj which to take the case out of the opera- 
tion of the statute, unless the same is contained in some writing, 
signed bv the party to be charged thereby. . • • 



Chapter V. 

PAETIES TO SUITS— COMMENCEMENT OF ACTIONS. 

Every action must be prosecuted in the name of the real party 
in interest, except in the case of an executor, or administrator, or 
trustee of an express trust, (including a person with whom, or in 
whose name, a contract is made for the benefit of another) or a 
person expressly authorized by statute, who may sue without 
joining with him the person or persons for whose benefit the actiori 
is brought. 

In the case of an assignment of a right to recover money or 
other personal property by a judicial proceeding, the action by 
the assignee is without prejudice to any set-ofF or other defense ex- 
isting at the time of, or before notice of, the assignment ; but this 
does not apply to a negotiable promissory note or bill of exchange, 
transferred, in good faith and upon good consideration, before ma- 
turity. 

Persons severally liable upon the same obligation or instrument, 
including the parties to bills of exchange and promissory notes, 
and sureties on the same or separate instruments, may all or any 
of them be included in the same action, at the option of the plaintiff. 

Civil actions in the Courts of this State are commenced by filing 



Chap. 5.]' CALIFORNIA. 43 

a complaint. In the Justices' Courts, by filing a complaint and 
issuing a summons thereon, or bj the voluntary appearance and 
pleading of the parties. 

The plaintiff may have summons issued any time within one year 
after the complaint is filed with the clerk or justice. 

In the District Courts the defendant is allowed ten days after 
the service of summons and complaint to appear and answer the 
complaint, where service is made within the county in which the 
action is brought ; twenty days if served out of the county but in 
the district in which the action is brought, and forty days if served 
elsewhere. 

In the District Courts, the summons and copy of complaint may 
be served by the sh^eriff of the county where defendant may be 
found, or by any other person over the age of eighteen, not a party 
to the action. 

On whom summons to he served: 

1. If the suit is against a corporation formed under the laws of 
this State : the president or other head of the corporation, secre- 
tary, cashier, or managing agent thereof. 

2. If against a foreign corporation, or a non-resident joint-stock 
company or association, doing business and having a managing or 
business agent, cashier, or secretary within this State : the agent, 
cashier, or secretary. 

3. If against a minor under the age of fourteen years, residing 
within this State : such minor personally, and also his father, 
mother, or guardian; or if there be none within this State, then 
any person having the care or control of such minor, or with whom 
he resides, or in whose service he is emploped. 

4. If against a person, residing within this State, who has been 
judicially declared to be- of unsound mind, or incapable of conduct- 
ing his own affairs, and for whom a guardian has been appointed : 
such person, and also his guardian. 

5. If against a county, city, or town : the president of the board 
of supervisors, president of the council, or trustees, or other head 
of the legislative department thereof. 

6. In all other cases the defendant must be served personally. 



44 CALIFORNIA. * [Part 8. 

Service hy publication: 

When the person on whom the service is to be made resides out 
of the State, or has departed from the State, or cannot, after due 
diUgence, be found within the State, or conceals himself to avoid 
service, or is a foreign corporation having no managing or business 
agent, cashier, or secretary within the State, and the fact appears 
by affidavit to the satisfaction of the Court, or a judge thereof, or 
a coanty judge, and it also appears by such affidavit, or by the 
verified complaint on file, that a cause of action exists against the 
defendant in respect to whom the service is to be made, or that he 
is a necessary or proper party to the action, such Court or judge 
may make an order that the service be made by the publication of 
the summons. 

The order must direct the publication to be made in a news- 
paper, to be designated as most likely to give notice to the person 
to be served, and for such length of time as may be deemed reason- 
able, at least once a week ; but publication against a defendant re- 
siding out of the State, or absent therefrom, must not ^e less than 
two months. In case of publication, where the residence of a non- 
resident or absent defendant is known, the Court or a judge must 
direct a copy of the summons and complaint to be forthwith de- 
posited in the postoffice, directed to the person to be served, at 
his place of residence. When publication is ordered, personal 
service of a copy of the summons and complaint out of the State 
is equivalent to publication and deposit in the postoffice. In 
either case, the service of the summons is complete at the expira- 
tion of the time prescribed by the order for publication. 

Provisions in Justices' Courts. 

In Justices' Courts, the time for the appearance of the defend- 
ant must be set forth in the summons, and must be as follows : — 

1. Forthwith, if an order of arrest is indorsed upon the sum- 
mons. 

2. Not less than twenty nor more than thirty days from its 
date, if the defendant is not a resident of the county in which the 
action is brought. 



Chap. 5.] CALIFORNIA. 45 

3. In all other cases, not less than three nor more than twelve 
days from its date. 

On whom summons to be served in Justice Court actions : see 
rule for service in District Courts. 

Service hy publication : 

Rule in District Courts applicable to Justices' Courts. 

In Justice Court actions the summons cannot be served out of 
the county of the justice before whom the action is brought, ex- 
cept when the action is brought upon a joint contract or obligation 
of two or more persons who reside in different counties, and the 
summons has been served upon the defendant resident of the 
county, in which case the summons may be served upon the other 
defendants out of the county ; and except also Avhen an action is 
brought against a party who has contracted to perform an obliga- 
tion at a particular place, and resides in a different county, in 
which case summons may be served in the county where he re- 
sides. When the defendant resides in the county, the summons 
cannot be served within two days of the time fixed for the ap- 
pearance of the defendant ; and when he resides out of the 
county and the summons is served out of the county, the sum- 
mons cannot be served within twenty days of such time. 

The justice may, within a year from the date of filing the com- 
plaint, issue as many ahas summons as may be demanded by the 
plaintiff. 

The summons in a Justice Court action may be served by a 
sheriff or constable of any of the counties of this State, or by 
any male resident over the age of twenty-one years, not a party to 
the suit, and within the county where the action is brought, or it 
may be served by publication. When a summons is issued by a 
justice of the peace for service out of the county in which it was 
issued, the summons shall have attached to it a certificate, under 
seal by the county clerk of such county, to the effect that the 
person issuing the same was an acting justice of the peace at the 
date of the summons. 



4.6 CALIFORNIA. [Part 3. 



Chapter VI. 

FORM OF CIVIL ACTIONS— PLEADINGS. 

There is in this State but one form of civil actions for the en- 
forcement or protection of private rights and the redress or 
prevention of private wrongs. 

In such action the party complaining is known as the plaintiff, 
and the adverse party as the defendant. 

Pleadings. 

Pleadings are the formal allegations by the parties of their res- 
pective claims and defenses, for the judgment of the Court. ~^ 
The only pleadings allowed on the part of the plaintiff are — 

1. The complaint. 

2. The demurrer to the answer. 

3. Demurrer and answer to a cross-complaint. 
Those allowed on the part of the defendant are — 

1. The demurrer to the complaint. 

2. The answer. 

3. Cross-complaint. 

A demurrer raises an issue of law. 

An answer raises an issue of fact. 

An issue of law is tried by the Court. 

An issue of fact is tried by a jury, unless a jury trial is waived. 

The complaint must contain a concise statement, in writing, of 
the facts constituting the cause of action. 

In the Justice Court a copy of the account, note, bill, bond, or 
instrument upon which the action is based, is sufficient. 

The' plaintiff may unite several causes of action in the same 
complaint where they all arise out of — 

1. Contracts, express or implied. 

2. Claims to recover specific real property, with or w^ithout 
damages for the withholding thereof, or for waste committed there- 
on, and the rents and profits of the same 



Chap. C] CALIFORNIA. 47 

3. Claims to recover specific personal property, with or without 
damages for the withholding thereof. 

4. Claims against a trustee by virtue of a contract or bj opera- 
tion' of law. 

5. Injuries to character. 

6. Injuries to person. 

7. Injuries to property. 

The causes of action so united must all belong to one only of 
these classes, and must affect- all the parties, to the action, and not 
require different places of trial, and must be separately stated. 

The defendant may demur to the complaint within the time re- 
quired in the summons to answer, when it appears upon the face 
thereof, either — 

1. That the Court has no jurisdiction of the person of the de- 
fendant, or the subject of the action ; or, 

2. That the plaintiff has not legal capacity to sue ; or, 

3. That there is another action pending between the same par- 
ties for the same cause ; or, 

4. That there is a defect or misjoinder of parties plaintiff or de- 
fendant ; or, 

5. That several causes of action have been improperly united ; or 

6. That the complaint does not state facts sufficient to constitute 
a cause of action ; or, 

7. That the complaint is ambiguous, unintelligible, or uncertain. 
Unless the demurrer distinctly specify the grounds upon which 

any of the objections to the complaint ^.re taken, it may be dis- 
regarded. 

The defendant may demur and answer at the same time. 

The answer of the defendant shall contain — 

1. A general or specific denial of the material allegations of the 
complaint controverted by the defendant. 

2. A statement of any new matter constituting a defense or 
counter claim. If the complaint be verified, the denial of each 
allegation controverted must be specific, and be made positively, 
or according to the information and belief of the defendant. If the 
defendant has no information or belief upon the subject sufficient to 
enable him to answer an allegation of the complaint, he may so 



48 CALiFORj^iA. [Part 3. 

state in his answer, and place his denial on that ground. If the 
complaint be not verified, a general denial is sufficient, but only 
puts in issue the material allegations of the complaint. 

The counter-claim above mentioned must be one existino; in favor 
of a defendant, and against a plaintiff, between whom a several 
judgment might be had in the action, and arising out of one of 
the following causes of action : 

1. A cause of action arising out of the transaction set forth in 
the complaint as the foundation of the plaintiff's claim, or connected 
with the subject of the action. 

2. In an action arising upon contract ; any other cause of action 
arising upon contract, and existing at the commencement of the 
action. 

If the defendant omit to set up a counter-claim arising out of 
the transaction set forth in the complaint as the foundation of the 
plaintiff's claim, or connected with the subject of the action, neither 
he nor his assignee can afterwards maintain an action against the 
plaintiff therefor. 

When cross-demands have existed between persons under such 
circumstances that, if one had brought an action against the other, 
a counter-claim could have been set up, the two demands shall be 
deemed compensated, so far as they equal each other, and neither 
can be deprived of the benefit thereof by the assignment or death 
of the other. 

The plaintiff may, within the same length of time after the ser- 
vice of the answer as the defendant is allowed to answer after 
service of summons, demur to the answer of the defendant, or to 
one or more of the several defenses or counter-claims set up in the 
answer. 

The demurrer may be taken upon one or more of the following 
grounds : 

1. That several causes of counter-claim have been improperly 
joined. 

2. That the answer does not state facts sufficient to constitute a 
defense or counter claim. 

3. That the answer is ambiguous, uninteUigible, or uncertain. 



Chap. 6.] CALIFORNIA. 49 

Verification of Pleadings. 

Every pleading must be subscribed by the party or his attor- 
ney ; and when the complaint is verified, the answer must be veri- 
fied, unless an admission of the truth of the complaint might sub- 
ject the party to a criminal prosecution, or unless an oSicer of the 
State in his official capacity is defendant. In all cases of the 
verification of a pleading, the affidavit of the party must state that 
the same is true of his own knowledge, except as to the matters 
which are therein stated on his information or belief, and as to 
those matters that he believes it to be true ; and where a 
pleading is verified it must be by the affidavit of a party, unless 
the parties are absent from the county where the attorney resides, 
or from some cause unable to verify it, or the facts are within the 
knowled,u;e of his attorney or other person verifying the same. 
When the pleading is verified by the attorney, or any other per- 
son except one of the parties, he must set forth in the affidavit the 
reasons why it is not made by one of the parties. When a cor- 
poration is a party the verification can be made by an officer 
thereof. 

Provisions in Justices' Courts. 

Pleadings in Justices' Courts are not required to be in any par- 
ticular form, but must be such as to enable a person of common 
understanding to know what is intended. 

May — except the complaint — be oral or in writing. 

Not to be verified. 

If in writing, must be filed with the justice. 

If oral, an entry of their substance must be made in the docket. 

The defendant may, at any time before answering, demur to the 
complaint. 

The answer may contain a denial of any or all of the material 
facts stated in the complaint, which the defendant believes to be 
untrue, and also a statement, in a plain and direct manner, of any 
other facts constituting a defense or counter claim, upon which an 
action might be brought by the defendant against the plaintiff in a 
Justice's Court. 



50 CALIFORNIA. [Part 3. 

If the defendant omit to set up a counter claim in the cases 
just mentioned, neither he nor his assignee can afterwards maintain 
an action against the plaintiff therefor. 

When the answer contains new matter in avoidance, or con- 
stituting a defense or a counter claim, the plaintiff may, at any 
time before the trial, demur to the same for insufficiency, stating 
therein the grounds of such demurrer. 

The proceedings on demurrer are as follows : 

1. If the demurrer to the complaint is sustained, the plaintiff 
may within such time, not exceeding two days, as the Court 
allows, amend his complaint. 

2. If the demurrer to the complaint is overruled, the defendant 
may answer forthwith. 

8. If the demurrer to an answer is sustained, the defendant may 
amend his answer within such time, not exceeding two days, as^the 
Court may allow. 

4. If the demurrer to an answer is overruled, the action must 
proceed as if no demurrer had been interposed. 

Either party may, at any time before the conclusion of the trial, 
amend any pleading ; but if the amendment is made after the issue, 
and it appears to the satisfaction of the Court, by oath, that an ad- 
journment is necessary to the adverse party in consequence of such 
amendment, an adjournment must be granted. The Court may 
also, in its discretion, when an adjournment be rendered necessary, 
require as a condition to the allowance of such amendment, made 
after issue joined, the payment of costs to the adverse party, to be 
fixed by the Court, not exceeding twenty dollars. The Court may 
also, on such terms as may be just, and on payment of costs, relieve 
a party from a judgment by default taken against him by his mis- 
take, inadvertence, surprise, or excusable neglect ; but the applica- 
tion for such relief must be made within ten days after the entry 
of the judgment, and upon an affidavit showing good cause there- 
for. 

When a pleading is amended, the adverse party may answer or 
demur to it within such time, not exceeding two days, as the Court 
mav allow. 



Chap. 7.] CALIFORNIA. 51 



Chapter VII. 

ATTACHMENTS. 

The plamtiff, at the time of issuing the summons, or at any time 
afterwards, may have the property of the defendant attached as 
security for the satisfaction of any judgment that may be recovered, 
unless the defendant gives security to pay such judgment, in the 
following cases : 

1. In an action upon a contract, express or implied, for the 
direct payment of money, where the contract is made or is payable 
in this State, and is not secured by any mortgage or lien upon 
real or personal property, or any pledge of personal property ; or 
if originally so secured, such security has, w^ithout any act of the 
plaintiff, or the person to whom the security was given, become 
valueless. 

2. In an action upon a contract, express or implied, against a 
defendant not residing in this State. 

In Justices' Courts, the writ to attach the property of the de- 
fendant must be issued at the time of or after issuing summons, 
and before answer. 

Before issuing the writ of attachment, the clerk of the Court or 
justice must require an affidavit by or on behalf of the plaintiff, 
showing : 

1. That the defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness, over and above all legal set-offs or 
counter-claims) upon a contract, express or implied, for the 
direct payment of money, and that such contract w^as made or is 
payable in this State, and that the payment of the same has not 
been secured by any mortgage or lien upon real or personal prop- 
erty, or any pledge of personal property ; or if originally so secured, 
that such security has, without any act of the plaintiff, or the person 
to whom the security was given, become valueless ; or, 

2. That the. defendant is indebted to the plaintiff (specifying the 
amount of such indebtedness over and above all legal set-offs, or 



52 CALIFORNIA. [Part. 3. 

counter-claims) and that the defendant is a non-resident of the 
State ; and, 

3. That the attachment is not sought and the action is not pros- 
ecuted to hinder, delay, or defraud any creditor of the defendant. 

The clerk or justice must also require, before issuing the writ, 
a written undertaking on the part of the plaintiff, (in the District 
Court, in a sum not less than two hundred dollars, and not exceed- 
ing the amount claimed by the plaintiff; and in the Justice's Court, 
in a sum not less than fifty dollars, and not more than three hund- 
red dollars) by two or more sufficient sureties, to the effect that if 
the defendant recover judgment, the plaintiff will pay all costs that 
may be awarded to the defendant, and all damages which he may 
sustain by reason of the attachment, not exceeding the sum speci- 
fied in the undertaking. 

The defendant may except to the sufficiency of the sureties. 

The writ of attachment in District Court actions must be directed 
to the sheriff of any county in which property of such defendant 
may be ; in Justice Court actions to the sheriff of any county in 
which property of the defendant may be, or to the sheriff or con- 
stable in the county where the suit is brought, and must require 
him to attach and safely keep all the property of the defendant 
within his county, not exempt from execution, or so much thereof 
as may be sufficient to satisfy the plaintiff's demand, the amount of 
which must be stated in conformity with the complaint, unless the 
defendant give him security by the undertaking of at least two 
sufficient sureties, in an amount sufficient to satisfy such demand, 
besides costs, or in an amount equal to the value of the property 
which has been, or is about to be, attached. Several writs may 
be issued at the same time, to the sheriffs of different counties. 

The writ of attachment must be executed, without delay, by the 
sheriff to whom it is directed : 

1. Real property, standing upon the records of the county in the 
name of the defendant, must be attached by filing with the re- 
corder of the county a copy of the writ, together with a descrip- 
tion of the property attached, and a notice that it is attached, and 
by leaving a similar copy of the writ, description and notice with 
an occupant of the property, if there is one ; if not, then by post- 
ing the same in a conspicuous place on the property attached. 



Chap. 7.] CALIFORNIA. 53 

2. Real property, or an interest therein, belonging to the defend- 
ant, and held by any other person, or standing on the records of the 
county in the name of any other person, must be attached by filing 
with the recorder of the county a copy of the writ, together with 
a description of the property, and a notice that such real property 
and any interest of the defendant therein, held by or standing in 
the name of such other person, (naming him) are attached ; and 
by leaving with the occupant, if any, and with such other person 
or his agent, if known and within the county, or at the residence 
of either, if within the county, a copy of the writ, with a similar 
description and notice. If there is no occupant of the property, 
a copy of the wTit, together with such description and notice, must 
be posted in a conspicuous place upon the property. The recorder 
must index such attachment when filed, in the names both of the 
defendant and of the person by whom the property is held, or in 
whose name it stands on the records. 

3. Personal property, capable of manual delivery, must be at- 
tached by taking it into custody. 

4. Stocks or shares, or interest in stocks or shares of any cor- 
poration or company, must be attached by leaving with the presi- 
dent or other head of the same, or the secretary, cashier, or 
other managing agent thereof, a copy of the writ, and a notice 
stating that the stock or interest of the defendant is attached, in 
pursuance of such writ. 

5. Debts and credits, and other personal property not capable of 
manual delivery, must be attached by leaving with the person own- 
ing such debts, or having in his possession, or under his control, 
such credits and other personal property, or with his agent, a copy 
of the writ, and a notice that the debts owing by him to the defend- 
ant, or the credits and other personal property in his possession or 
under his control, belonging to the defendant, are attached in pur- 
suance of such writ. 

Upon receiving information, in waiting, from the plaintiff or his 
attorney, that any person has in his possession, or under his con- 
trol, any credits or other personal property belonging to the de- 
fendant, or is owing any debt to the defendant, the sheriff must 
serve upon such person a copy of the writ, and a notice that such 



54 CALIFORNIA. [Part 3. 

credits or other property or debts, as the case may be, are attaclied 
in pursuance of such writ. 

All persons having in their possession, or under their control, 
any credits or other personal property belonging to the defendant, 
or owing any debts to the defendant at the time of service upon 
them of a copy of the writ and notice, as above directed, shall be, 
unless such property be dehvered up or transferred, or such debts 
be paid to the sheriff, liable to the plaintiff for the amount of such 
credits, property, or debts, until the attachment be discharged, or 
any judgment recovered by him be satisfied. 

Any person owing debts to the defendant, or having in his pos- 
session, or under his control, any credits or other personal property 
belonging to the defendant, may be required to attend before the 
Court or judge, or a referee appointed by the Court or judge, and 
be examined on oath respecting the same. The defendant may also 
be required to attend for the purpose of giving information respect- 
ing his property, and may be examined on oath. The Court or 
judge may, after such examination, order personal property, 
capable of manual dehvery, to be delivered to the sheriff on such 
terms as may be just, having reference to any liens thereon, or any 
claims against the same, and a memorandum to be given of all 
other personal property, containing the amount and description 
thereof. 

Perishable property attached must be sold by the sheriff. The 
proceeds, and other property attached, must be retained by him 
to answer any judgment that may be recovered in the action, 
unless sooner subjected to execution upon another judgment re- 
covered previous to the issuing of the attachment. Debts and 
credits attached may be collected by him, if the same can be done 
without suit. The sheriff's receipt is a sufficient discharge for the 
amount paid. 

Whenever property has been taken by an officer under a writ of 
attachment, and it is made to appear satisfactorily to the Court, or 
a judge thereof, or a county judge, that the interest of the parties 
to the action will be subserved by a sale thereof, the Court or a 
judge may order such property to be sold in the same manner as 
property is sold under an execution,, and the proceeds to be de- 
posited in the Court, to abide the judgment in the action. 



Chap. 7.] CALIFORNIA. 55 

ir any personal property attached be claimed by a third person 
as his property, the sheriff may summon a jury of six men to try 
the validity of such claim. 

Whenever the defendant has appeared in the action, he may, 
upon reasonable notice to the plaintiff, apply to the Court in which 
the action is pending, or to the judge thereof, or to a county 
judge, for an order to discharge the attachment, wholly or in 
part ; and, upon the execution of the undertaking mentioned here- 
after, an order may be made, releasing from the operation of the 
attachment any or all of the property attached ; and all the prop- 
erty so released, and all of the proceeds of the sales thereof, must 
be delivered to the defendant, upon the justification of the sureties 
on the undertaking, if required by the plaintiff. 

Before making such order, the Court or judge must require an 
undertaking on behalf of the defendant, by at least two sureties, 
residents and freeholders, .or householders, in the State, to the 
effect that, in case the plaintiff recover judgment in the action, the 
defendant will, on demand, re-deliver the attached property so re- 
leased to the proper officer, to be applied to the payment of the 
judgment ; or, in default thereof, that the defendant and sureties 
will, on demand, pay to the plaintiff the full value of the property 
released. The Court or judge making such order may fix the 
sum for which the undertaking must be executed, and if necessary, 
in fixing such sum, to know the value of the property released, the 
same may be appraised by one or more disinterested persons, to be 
appointed for that purpose. The sureties may be required to jus- 
tify before the Court or judge, and the property cannot be released 
without their justification, if the same be required. 

The defendant may also, at any time, either before or after the 
release of the attached property, or before any attachment shall 
have been actually levied, apply on motion, upon reasonable notice 
to the plaintiff, to the Court in which the action is brought, or to 
the judge thereof, or to a county judge, that the writ of attach- 
ment be discharged, on the ground that the same was improperly or 
irregularly issued. 

If, upon such application, it satisfactorily appears that the writ 
of attachment was improperly or irregularly issued, it must be dis- 
charged. 



56 CALIFORNIA. [Part 3. 



Chapter VIII, 



CLAIM AND DELIVERY OF PERSONAL PROPERTY. 

The plaintiiF in an action to recover the possession of personal 
property may, at the time of issuing the summons, or at any time 
before answer, claim the delivery of such property to him. 

Where a delivery is claimed, an affidavit must be made by the 
plaintiff, or by some one on his behalf, showing — 

1. That the plaintiff is the owner of the property claimed, (par- 
ticularly describing it) or is entitled to the possession thereof. 

2. That the property is wrongfully detained by the defendant. 

3. The alleged cause of the detention thereof, according to his 
best knowledge, information, and belief. 

4. That it has not been taken for a tax, assessment or fine, pur- 
suant to a statute ; or seized under an execution or an attachment 
against the property of the plaintiff; or if so seized, that it is by 
statute exempt from seizure. 

5. The actual value of the property. 

The plaintiff or his attorney may, thereupon, by an endorse- 
ment in writing upon the affidavit, require the sheriff of the 
county where the property claimed may be, to take the same 
from the defendant. 

Upon a receipt of the affidavit and notice with a written under- 
taking, executed by two or more sufficient sureties, approved by 
the sheriff, to the effect that they are bound to the defendant in 
double the value of the property as stated in the affidavit for the 
prosecution of the action, for the return of the property to the de- 
fendant, if return thereof be adjudged, and for the payment to 
him of such sum as may from any cause be recovered against the 
plaintiff, the sheriff must forthwith take the property described in 
the affidavit, if it be in the possession of the defendant or his agent, 
and retain it in his custody. The Sheriff must, without delay, 
serve on the defendant a copy of the affidavit, notice, and under- 
taking. 



Chap. 8.] CALIFORNIA. 57 

The defendant may within two days after the service of a copy 
of the affidavit and undertaking give notice to the sheriif that he 
excepts to the sufficiency of the sureties. If he fails to do so, he is 
deemed to have waived all objections to them. When the defend- 
ant excepts, the sureties must justify on notice before the judge or 
county clerk ; and the sheriif is responsible for the sufficiency of 
the sureties until the objection to them is either waived or until 
they justify. 

At any time before the delivery of the property to the plaintiff, 
the defendant may, if he do not except to the sureties of the 
plaintiff,' require the return thereof, upon giving to the sheriff a 
written undertaking, executed by two or more sufficient sureties, to 
the effect that they are bound in double the value of the property, 
as stated in the affidavit of the plaintiff, for the delivery thereof to 
the plaintiff, if such delivery be adjudged ; and for the payment to 
him of such sum as may, for any cause, be recovered against the 
defendant. If a return of the property be not so required within 
five days after the taking and service of notice to the defendant, it 
must be delivered to the plaintiff, unless claimed by a third party, 
as hereafter set forth. The defendant's sureties, upon notice to the 
plaintiff of not less than two or more than five days, must justify 
before a judge or county clerk ; and upon such justification, the 
sheriff must deliver the property to the defendant. The sheriff is 
responsible for the defendant's sureties until they justify, or until 
the justification is completed or waived, and may retain the property 
until that time ; if they, or others in th-eir place, fail to justify at 
the time and place appointed, he must deliver the property to the 
plaintiff. 

If the property taken be claimed by any other person than the 
defendant or his agent, and such person make affidavit of his title 
thereto, or right to the possession thereof, stating the grounds of 
such title or right, and serve the same upon the sheriff, the sheriff 
is not bound to keep the property or deliver it to the plaintiff, un- 
less the plaintiff, on demand of him, or his agent, indemnify the 
sheriff against such claim, by an undertaking, by two sufficient 
sureties ; and no claim to such property by any other person than 
the defendant or his agent is valid against the sheriff, unless so 
made. 



58 CALIFORNIA. [Part 3. 

The provisions contained in this chapter are applicable to cases 
in Justices' Courts, the word " constable " being substituted for 
" sheriif," and "justice" for "judge." 



Chaptp]r IX. 



ARREST AND BAIL. 

The defendant may be arrested in a civil action in the following 
cases : 

1. In an action for the recovery of money or damages on a cause 
of action arising upon contract, express or implied, when the 
defendant is about to depart from the State, with intent to defraud 
his creditors. 

2. In an action for a fine or penalty, or for money or property 
embezzled, or fraudulently misappUed, or converted to his own use, 
by a public officer, or an officer of a corporation, or an attorney, 
factor, broker, agent, or clerk, in the course of his employment as 
such, or by any other person in a fiduciary capacity ; or for mis- 
conduct or neglect in office, or in a professional employment, or for 
a willful violation of duty. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property or any part thereof has been 
concealed, removed, or disposed of, to prevent its being found or 
taken by the sheriff. 

4. When the defendant has been guilty of a fraud in contract- 
ing the debt, or incurring the obligation for which the action is 
brought ; or in concealing or disposing of the property, for the tak- 
ing, detention, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 



Chap. 9.] CALIFORNIA. 59 

The order of arrest is made upon affidavit of the plaintiff, or 
some other person, that a sufficient cause of action exists, and the 
case is one of those mentioned above. 

Before making the order of arrest, the judge must require a 
written undertaking on the part of the plaintiff, with sureties in an 
amount to be fixed by the judge, which must be at least five hun- 
dred dollars, to the effect that the plaintiff will pay all costs which 
may be adjudged to the defendant, and all damages which he may 
sustain by reason of the arrest, if the same be wrongful, or without 
sufficient cause, not exceeding the sum specified in the undertaking. 

In the Justice's Court, the defendant may be arrested in a civil 
action, in the following cases : 

1. In an action for the recovery of money or damages, on a 
cause of action arising upon contract, express or implied, when 
the defendant is about to depart from the State, with intent to 
defraud his creditors. 

2. In an action for a fine or penalty, or for money or property 
embezzled or fraudulently misapplied, or converted to his own use, 
by one who received it in a fiduciary capacity. 

3. When the defendant has been guilty of a fraud in contect- 
ing the debt or incurring the obligation for which the action is 
brought. 

4. When the defendant has removed, concealed, or disposed of 
his property, or is about to do so, with intent to defraud his cred- 
itors. 

No female can be arrested in an action in the Justice's Court. 
Before an order of arrest can be made, the party applying must 
prove to the satisfaction of the justice, by the affidavit of himself, 
or some other person, the facts upon which the application is found- 
ed, and the plaintiff must execute and deliver to the justice a 
written undertaking in the sum of three hundred dollars, with suf- 
ficient sureties, to the effect that the plaintiff will pay all costs that 
may be adjudged to the defendant, and all damages which he may 
sustain by reason of the arrest, if the same be wrongful or without 
sufficient cause, not exceeding the sum specified in the undertaking. 



60 ~ CALIFORNIA. [Part 3. 



Chapter X. 

INJUNCTIONS. 

An injunction is a writ or order requiring a person to refrain 
from a particular act. It may be granted in the following cases : 

1. When it appears bj the complaint that the plaintiff is entitled 
to the relief demanded, and such relief, or any proof thereof, con- 
sists in restraining the commission or continuance of the act com- 
plained of, either for a limited period or perpetually. 

2. When it appears by the complaint or affidavit, that the com- 
mission or continuance of some act during the litigation would pro- 
duce waste, great or irreparable injury to the plaintiff. 

3. When it appears, during the litigation, that the defendant is 
doing or threatens, or is about to do, or is procuring or suffering to 
be done, some act in violation of the plaintiffs rights respecting the 
subject of the action, and tending to render the judgment inef- 
fectual. 



Chapter XI. 



JUDGMENTS AND JUDGMENT LIENS. 

A judgment is the final determination of the rights of the par- 
ties in an action or proceeding. 

A judgment may be given for or against one or more of several 
plaintiffs, and for or against one or more of several defendants ; 
and it may, when the justice of the case requires it, determine the 
ultimate rights of the parties on each side, as between them- 
selves. 



Chap. 11.] CALIFORNIA. 61 

In an action against several defendants, the Court may, in its dis- 
cretion, render judgment against one or more of them, leaving the 
action to proceed against the others, whenever a several judgment 
is proper. — 

The relief granted to the plaintiff, if there be no answer, cannot 
exceed that Avhich he shall have demanded in his complaint ; but in 
any other case, the Court may grant him any relief consistent with 
the case made by the complaint and embraced within the issue. 

An action may be dismissed or a judgment of non-suit entered in 
the following cases : 

1. By the plaintiff himself, at any time before trial, upon the 
payment of costs, if a counter-claim has not been made. 

2. By either party, upon the written consent of the other. 

3. By the Court, when the plaintiff fails to appear on the trial, 
and the defendant appears and asks for the dismissal. 

4. By the Court, when, upon the trial, and before the final sub- 
mission of the case, the plaintiff abandons it. 

5. By the Court, upon motion of the defendant, when, upon the 
trial, the plaintiff fails to prove a sufficient case for the jury. 

In all other cases, judgment must be rendered on the merits. 

Judgment upon Failure to Answer. 

Judgment may be had if the defendant fail to answer or demur 
to the complaint within the time specified in the summons, or within 
such further time as may have been granted, as follows : 

1. In an action arising upon contract for the recovery of money 
or damages only, the clerk, upon application of the plaintiff, must 
enter the default of the defendant, and immediately thereafter 
enter judgment for the amount specified in the summons, including 
the costs, against the defendant, or against one or more of several 
defendants, when the action is against two or more defendants, 
jointly or severally liable on a contract, and the summons is served 
on one or more, and not on all of them, in which case the plaintiff 
may proceed against the defendants served in the same manner as 
if they were the only defendants. 

2. In other actions, the clerk must enter the default of the de- 



62 'CALIFORNIA. [Part 3. 

fendant ; and thereafter the plaintiff may apply at the first or any 
subsequent term of the Court for the relief demanded in the com- 
plaint. If the taking of an account, or the proof of any fact, is 
necessary to enable the Court to give judgment, or to carry the 
judgment into effect, the Court may take the account or hear the 
proof; or may, in its discretion, order a reference for that purpose. 
And when the action is for damages, in whole or in part, the Court 
may order the damages to be assessed by a jury ; or if, to determine 
the amount of damages, the examination of a long account be in- 
volved, by a reference as above provided. 

8. In an action where the service of summons was by publica- 
tion, the plaintiff, upon the expiration of the time for answering, 
may, upon proof of the publication, and that no answer has been 
filed, apply for judgment ; and the Court must thereupon require 
proof to be made of the demand mentioned in the complaint ; and 
if the defendant be not a resident of the State, must require the 
plaintiff or his agent to be examined on oath respecting any pay- 
ments that have been made to the plaintiff, or to any one for his 
use, on account of such demand, and may render judgment for the 
amount which he is entitled to recover. 

Judgment by Confession. 

A judgment by confession may be entered without action, either 
for money due or to become due, or to secure any person against 
contingent liabiUty on behalf of the defendant, or both. 

A statement in writing must be made, signed by the defendant 
and verified by his oath, to the following effect : 

1. It must authorize the entry of judgment for a specified sum. 

2. If it be for money due, or to become due, it must state con- 
cisely the facts out of which it arose, and show that the sum con- 
fessed therefor is justly due, or to become due. 

,^ 3. If it be for the purpose of securing the plaintiff against a 
contingent liability, it must state concisely the" facts constituting 
the Uability, and show that the sum confessed therefor does not 
exceed the same. 



Chap. 11.] CALIFORNIA. | 63 



Judgment on Proceedings \^' ithout Action by Submission of 
A Controversy. 

Parties to a question in difference, which might be the subject 
of a civil action, may, without action, agree upon a case containing 
the facts upon which the controversy depends, and present a sub- 
mission of the same to any Court which would have jurisdiction, if 
an action had been brought ; but it must appear by affidavit that 
the controversy is real, and the proceedings in good faith to deter- 
mine the rights of the parties. The Court must, thereupon, hear 
and determine the case, and render judgment thereon, as if an 
action were pending. 

Judgment after Verdict. 

When trial by jury has been had, judgment must be entered by 
the Clerk in conformity to the verdict, within twenty-four hours 
after the rendition of the verdict, unless the Court order the case to 
be reserved for argument for further consideration, or grant a stay 
of proceedings. 

Upon the trial of a question of fact by the Court, its decision 
must be given in. writing, and filed with the clerk, within thirty 
days after the cause is submitted for decision. 

Judgment upon the decision must be entered accordingly. 

On a judgment for the plaintiff upon an issue of law, he may 
proceed as in the case of judgment upon failure to answer. If 
judgment be for the defendant upon an issue of law, and the taking 
of an account or the proof of any fact be necessary to enable the 
Court to complete the judgment, a reference may be ordered. 

Proceedings against Joint Debtors". 

When a judgment is recovered against one or more of several 
persons, jointly indebted upon an obligation, those who were not 
originally served with the summons, and did not appear to the ac- 
tion, may be summoned to show cause why they should not be 
bound by the judgment in the same manner as though they had 
been originally served with the summons. 



64 CALIFORNIA. [Part 3. 



Progeedings on Offer op Defendant to Compromise. 

The defendant may, at any time before the trial or judgment, 
serve upon the plaintiflf an offer to allow judgment to be taken 
against him for the sum or property, or to the effect therein speci- 
fied. If the plaintiff" accept the offer, and give notice thereof 
within five days, he may file the offer, with proof of notice of ac- 
ceptance, and the clerk must thereupon enter judgment accord- 
ingly. If the notice of acceptance be not given, the offer is to be 
deemed withdrawn, and cannot be given in evidence upon the trial ; 
and if the plaintiff fail to obtain a more favorable judgment, he 
cannot recover costs, but must pay the defendant's costs from the 
time of the offer. 

Gold Coin or Currency Judgment. 

In an action on a contract or obligation in writing, for the direct 
payment of money, made payable in a specified kind of money or 
currency, judgment for the plaintiff, whether it be by default or 
after verdict, may follow the contract or obligation, and be made 
payable in the kind of money or currency specified therein ; and in 
all actions for the recovery of money, if the plaintiff allege in his 
complaint that the same was understood and agreed by the respect- 
ive parties to be payable in a specified kind of money or currency, 
and this fact is admitted by the default of the defendant or establish- 
ed by evidence, the judgment for the plaintiff must be made pay- 
able in the kind of money or currency so alleged in the complaint ; 
and in an action against any person for the recovery of money re- 
ceived by such person in a fiduciary capacity, or to the use of 
another, judgment for the plaintiff must be made payable in the 
kind of money or currency so received by such person. 

Judgment in Replevin. 

In an action to recover the possession of personal property, judg- 
ment for the plaintiff may be for the possession or value thereof, in 
case a dehvery cannot be had, and damages for the detention. If the 



Chap. 11.] CALIFORNIA. 65 

property has been delivered to the plaintiff, and the defendant claim a 
return thereof, judgment for the defendant may be for a return of 
the property, or the value thereof, in case a return cannot be had, 
and damages for taking and withholding the same. 

Judgment Lien. 

From the time the judgment is docketed it becomes a Hen upon 
all the real property of the judgment debtor, not exempt from ex- 
ecution in the county, owned by him at the time, or which he may 
afterwards acquire, until the lien ceases. The lien continues for 
two years, unless the enforcement of the judgment be stayed on 
appeal by execution of a sufficient undertaking, in which case the 
lien of the judgment ceases. See elsewhere, how judgments in 
Justices' Courts are made a lien on real property. 

A transcript of the original docket, certified by the clerk, may 
be filed with the recorder of any other county ; and from the time 
of the filing the judgment becomes a lien upon all the real prop- 
erty of the judgment debtor, not exempt from execution, in 
such county, owned by him at the time, or which he may after- 
wards, and before the lien expires, acquire. The lien continues 
for two years. 

Provisions in Justices' Courts. 

Judgment hy default. 
When the defendant fails to appear and answer or demur at the 
time specified in the summons, or within one hour thereafter, then, 
upon proof of service of the summons, the following proceedings 
must be had : » 

1. If the action is based upon a contract, and is for the recov- 
ery of money or damages only, the Court must render judgment in 
favor of plaintiff for the sum specified in the summons. 

2. In all other actions, the Court must hear the evidence offered 
by the plaintiff, and must render judgment for such a sum (not ex- 
ceeding the amount stated in the summons) as appears by such 
evidence to be just. 

In the following cases the same proceedings must be had, and 
5 



(j6 CALIFORNIA. [Part 8. 

judgment must be rendered in like manner, as if the defendant had 
failed to appear and answer or demur : 

1. If the complaint has been amended, and the defendant fails 
to answer it as amended, within the time allowed bj the Court. 

2. If the demurrer to the complaint is overruled, and the de- 
fendant fails to answer at once. 

3. If the demurrer to the answer is sustained, and the defend- 
ant fails to amend the answer within the time allowed by the Court. 

Judgments other than hy default : 
Judgments upon confession may be entered up in any Justice's 

Court specified in the confession. 

Judgment that the action be dismissed without prejudice to a 

new action, may be entered with costs in the following cases : 

1. When the plaintiff voluntarily dismisses the action before it 
is finally submitted. - 

2. When he fails to appear at the time specified in the sum- 
mons, or at the time to which the action has been postponed, or 
within one hour thereafter. 

3. When after a demurrer to the complaint has been sustained, 
the plaintiff fails to amend it within the time allowed by the Court. 

4. When it is objected at the trial, and appears by the evidence, 
that the action is brought in the wrong county, or township, or 
city ; but if the objection is taken and overruled, it is cause only 
of reversal on appeal, and does not otherwise invalidate the judg- 
ment ; if not taken at the trial, it is waived. 

When a trial by a jury has been had, judgment must be en- 
tered by the justice, at once, in conformity with the verdict. 

When the trial is by the Court, judgment must be entered at the 
end of the trial. 

When the amount found due to either party exceeds the sum 
for which the justice is authorized to enter judgment, such party 
may remit the excess, and judgment may be entered for the residue. 

If the defendant, at any time before the trial, offer in writing to 
allow judgment to be taken against him for a specific sum, the 
plaintiff may immediately have judgment therefor, with the costs 
then accrued ; but if he do not accept such offer before the trial, 
and fail to recover in the action a sum equal to the offer, he can- 



Chap. 12.] CALIFORNIA. B7 

not recover costs, but costs must be adjudged against him, and if 
he recover, be deducted from his recovery. The offer and failure 
to accept it cannot be given in evidence, nor affect the recovery 
otherwise than as to costs. 

The justice must tax and include in the judgment the costs 
allowed by law to the prevailing party. 

An abstract of the judgment may be filed and docketed in the 
office of the county clerk of the county in which the judgment 
was rendered, and must be docketed in the judgment docket of the 
county court. 

A judgment rendered in a Justice's Court creates no Hen upon 
any land of the defendant, unless an abstract of the judgment is 
filed and recorded in the office of the recorder of the county in 
which the lands are situated ; when so filed and recorded, such a 
judgment is a lien upon the lands of the judgment debtor situated 
in that county. 



Chapter XII. 



EXECUTION^SALE AND KEDEMPTION. 

The party in whose favor judgment is given may at any time, 
within five years after the entry thereof, have a writ of execution 
issued for its enforcement — same in Justice Court actions. The 
execution may be made returnable at any time not less than ten 
nor more than sixty days after its receipt by the sheriff or constable. 

Executions may at the same time be issued to different counties. 

In Justices' Courts, the justice before w^hom the action is brought 
may issue an execution directed to the sheriff or constable of the 
county in w^hich judgment is obtained ; when it is desired to issue 
execution directed to the sheriff of another county, it is necessary 



68 CALIFORNIA. [Part 3. 

to file an abstract of the judgment with the county clerk of the 
county within which the judgment is obtained, and have him issue 
the execution. 

Notwithstanding the (ieath of a party after the judgment, execu- 
tion thereon may be issued, or it may be enforced as follows : 

1. In the case of the death of the judgment creditor, upon the 
application of his executor or administrator, or successor in interest. 

2. In the case of the judgment debtor, if the judgment be for 
the recovery of real or personal property, or the enforcement of a 
lien thereon. 

When any judgment has been rendered' for or against the testa- 
tor or intestate in, his lifetitue, no execution shall issue thereon after 
his death, except as above provided. If execution is actually lev- 
ied upon any property of the decedent before his death, the same 
may be sold for the satisfaction thereof; and the officer making the 
sale must account to the executor or administrator for any surplus 
in his hands. 

The following property is exempt from execution except upon a 
judgment recovered for its price, or upon a mortgage thereon : 

1. Chairs, tables, desks and books, to the value of two hundred 
dollars. 

2. Necessary household, table and kitchen furniture,. in eluding 
one sewing machine and one piano, in actual use in a family, or 
belonging to a womam ; stoves, stove-pipes and stove furniture, 
wearing apparel, beds, bedding and bedsteads, and provisions 
actually provided for individual or family use, sufficient for one 
month. 

3. The ■ farming utensils or implements of husbandry of the 
judgment debtor ; also, two oxen or two horses, or two mules and 
their harness, one cart or Avagon, and food for such oxen, horses, 
or mules for one month ; also, all seed grain or vegetables actually 
provided, reserved or on hand, for the purpose of planting or sow- 
ing at any time within the ensuing six months, not exceeding in 
value the sum of two hundred dollars. 

4. Tools or implements of a mechanic or artisan, necessary to 
carry on trade; the notarial seal and records of a notary public ; 
the instruments and chest of a surgeon, physician, surveyor and 



Chap. 12.] CALIFORNIA. 69 

dentist, necessary to the exercise of their profession, with their 
scientific and professional libraries ; the law professional libraries 
and office furniture of attorneys, counselors, and judges, and the 
libraries of ministers of the gospel. 

5. The cabin or dweUing of a miner, not exceeding in value the 
sum of five hundred dollars ; also his sluices, pipes, hose, windlass, 
derrick, cars, pumps, tools, implements and appliances necessary 
for carrying on any kind of mining operations, not exceeding in 
value the 'aggregate sum of five hundred dollars; and two horses, 
mules or oxen, with their harness ; and food for such horses, mules 
or oxen for one month, when necessary to he used in any whim, 
windlass, derrick, car, pump or hoisting gear. 

6. Two oxen, two horses or two mules, and their harness ; one 
cart or wagon, one dray or truck, one coupee, one hack or carriage 
for one or two horses, by the use of which a cartman, drayman, 
truckman, huckster, peddler, hackman, teamster or other laborer 
habitually earns his living ; and one horse, with vehicle and harness, 
or other equipments, used hy a physician, surgeon or minister of the 
gospel in making his professional visits, with food for such oxen, 
horses or mules, for one month. 

7. Four cows with their sucking calves, and four hogs with their 
sucking pigs. 

8. Poultry, not exceeding in value fifty dollars. 

9. The earnings of the judgment debtor for his personal services 
rendered at any time within thirty days next preceding the levy 
of execution or levy of attachment, when it appears by the debtor's 
affidavit or otherwise that such earnings are necessary for the use 
of his family residing in this State, supported wholly or in part by 
his labor. 

10. The shares held by a member of a homstead association 
duly incorporated, not exceeding in value one thousand dollars — if 
the person holding the shares is not the owner of a homestead under 
the law of this State. 

11. All moneys, benefits, privileges, or immunities accruing, or 
in any manner growing out of any life insurance on the life of the 
debtor, made in any company incorporated under the laws of this 
State, if the annual premiums paid do not exceed five hundred 
dollars. 



70 CALIFORNIA. [Part 3. 

12. All fire engines, hooks, and ladders, with the carts, trucks, 
and carriages, hose, buckets, implements, and apparatus thereto 
appertaining, and all furniture and uniform of any fire company or 
department organized under any law of this State. 

13. All arms, uniforms, and accoutrements required by law to 
be kept by any person. 

14. All court-houses, jails, public offices and buildings, lots, 
grounds and personal property, the fixtures, furniture, books, 
papers, and appurtenances belonging and pertaining to the court- 
house, jail, and public offices belonging to any county of this State ; 
and all cemeteries, public squares, parks and places, public build- 
ings, town halls, markets, buildings for the use of fire departments 
and military organizations, and the lots and grounds thereto belong- 
ing and appertaining, owned or held by any town or incorporated 
city, or dedicated by such town or city to health, ornament, or public 
use, or for the use of any fire or mihtary company organized under 
the laws of this State. ^ 

For exemption of homesteads, see " Homesteads." 

Notice of Sale. 

Before the sale of property on execution, notice thereof must be 
given as follows: [Same in Justice Court actions.] 

1. In the case of perishable property ; by posting written notice 
of the time and place of sale in three public places of the township 
or city where the sale is to take place, for such time as may be 
reasonable, considering the character and condition of the property. 

2. In case of other personal property ; by posting a similar notice 
in three public places in the township or city where the sale is to 
take pUce, for not less than five nor more than ten days. 

3. In case of real property; by ; posting a similar notice par- 
ticularly describing the property, for twenty days, in three public 
places of the township or city where the property is situated, and 
also where the property is to be sold, and publishing a copy thereof 
once a week for the same period, in some newspaper published in 
the county, if there be one. 



Chap. 12.] CALIFORNIA. 71 



Sale of Real Property — When Absolute or Not. 

Upon a sale of real property, the purchaser is substituted to and 
acquires all the right, title, and interest, and claim of the judg- 
ment debtor thereto ; and when the estate is less than a leasehold 
of two years' unexpired term, the sale is absolute. In other cases 
the property is subject to redemption. 

Certificate of Sale of Real Estate. 

The oflBcer must give the purchaser a certificate of sale, and a 
duplicate of such certificate must be filed by the officer in the office 
of the recorder of the county. 

By Whom Property may be Redeemed, and When. 

Property sold, subject to redemption, ^s above provided, or 
any part sold separately, may be redeemed in the manner 
hereinafter provided, by the following persons or their successors in 
interest : 

1. The judgment debtor, or his successor in interest, in the 
whole or any part of the property. 

2. A creditor, having a lien by judgment or mortgage on the 
property sold, or on some share or part thereof subsequent to that 
on which the property was sold. 

The judgment debtor or redemptioner may redeem the property 
from the purchaser within six months after the sale, on paying the 
purchaser the amount of the purchase, with twelve per cent, there- 
on in addition, together with the amount of any assessment or 
taxes which the purchaser may have paid thereon after the pur- 
chase, and interest on such amount ; and if the purchaser be also 
a creditor, having a prior lien to that of the redemptioner, other 
than the judgment under which such purchase was made, the 
amount of such lien, with interest. 

If property be so redeemed by a redemptioner, another redemp- 
tioner may, within sixty days after the last redemption, again 
redeem it from the last redemptioner, on paying the sura paid on 



72 CALIFORNIA. , [Part 3. 

such last redemption, with four per cent, thereon in addition, and 
the amount of any assessment or taxes which the last redemptioner 
may have paid thereon after the redemption by him, with interest 
on such amount ; and, in addition, the amount of any liens held by 
said last redemptioner prior to his own, with interest ; but . the 
judgment under which the property was sold need not be so paid 
as a lien. The property may be again, and as often as a redemp- 
tioner is so disposed, redeemed from any previous redemptioner 
within sixty days after the last redemption, on paying the sum 
paid on the last previous redemption, with four per cent, thereon in 
addition, and the amount of any assessments or taxes which the 
last previous redemptioner paid after the redemption by him, with 
interest thereon ; and the amount of any hens, other than the judg- 
ment under which the property was sold, held by the last redemp- 
tioner previous to his own, with interest. Written notice of re-- 
demption must be given to the sheriff, and a duplicate filed with 
the recorder of the county; and if any taxes or assessments are 
paid by the redemptioner, or if he has or acquires any lien other 
than that • upon w^hich the redemption was made, notice thereof 
must in like manner be given to the sheriff, and filed with the 
recorder ; and if such notice be not filed, the property may be 
redeemed without paying such tax, assessment, or lien. If no re- 
demption be made within six months after the sale, the purchaser 
or his assignee is entitled to a conveyance ; or, if so redeemed, 
whenever sixty days have elapsed, and no other redemption has 
been made, and notice thereof given, and the time for redemption 
has expired, the last redemptioner or his assignee is entitled to a 
sheriff's deed ; but in all cases the judgment debtor shall have 
the entire period of six months from the date of the sale to redeem 
the property. If the judgment debtor redeem, he must make the 
same payments as are required to effect a redemption by a redemp- 
tioner. If the debtor redeem, the effect of the sale is terminated, 
and he is restored to his estate. Upon a redemption by the debtor, 
the person to whom the payment is made must execute and deliver 
to him a certificate of redemption, acknowledged or proved before 
an officer authorized to take acknowledgments of conveyances of 
real property. Such certificate must be filed and recorded in the 



Chap. 12.] CALIFORNIA. 73 

office of the recorder of the county in which the property is situ- 
ated. 

Payment may be made to the purchaser or redemptioner, or for 

him, to the officer who made the sale. 

A redemptioner must produce to the officer or person from whom 
he seeks to redeem, and serve with his notice to the sheriff — 

1. A copy of the docket of the judgment under which he claims 
the right to redeem, certified by the clerk of the Court, or of the 
county where the judgment is docketed ; or if he redeem upon a 
mortgage or other lien, a note of the record thereof certified by 
the recorder. 

2. A copy of any assignment necessary to establish his clainis, 
verified by the affidavit of himself or of a subscribing witness 
thereto. 

3. An affidavit by himself or his agent, showing the amount 
then actually due on the hen. 

Until the expiration of the time allowed for redemption, the 
Court may restrain the commission of waste on the property. 

The purchaser from the time of the sale until a redemption, and 
a redemptioner, from the time of his redemption until another re- 
demption, is entitled to receive from the tenant in possession the 
rents of the property sold, or the value of the use and occupation 
thereof. But when any rents or profits have been received by the 
judgment creditor or purchaser, or his or their assigns, from the 
property thus sold preceding such redemption, the amounts of 
such rents and profits shall be a credit upon the redemption money 
to be paid. 



1-k CALIFORNIA. [Part 3. 



Chapter XIII. 
* 

PROCEEDINGS SUPPLEMENTARY ' TO EXECUTION. 

When an execution against property of the judgment debtor, 
or any one of several debtors in the same judgment, issued to the 
sheriff of the county where he resides, or if he do not reside in 
this State, to the sheriff of the county where the judgment roll is 
filed, is returned unsatisfied, in whole or in part, the judgment 
creditor, at any time after such return is made, is entitled to an 
order from the judge of the Court, or a county judge, requiring 
such judgment debtor to appear and answer concerning his prop-^ 
erty, before such judge, or a referee appointed by him, at a time 
and place specified in the order ; but no judgment debtor must be 
required to attend before a judge or referee out of the county in 
which he resides. 

After the issuing of an execution against property, and upon 
proof by affidavit of a party or otherwise, to the satisfaction of 
the Court, or of -a judge thereof, or county judge, that any judg- 
ment debter has property which he unjustly refuses to apply to- 
wards the satisfaction of the judgment, such Court or judge may, 
by an order, require the judgment debtor to appear at a specified 
time and place before such judge, or a referee appointed by him, to 
answer concerning the same ; and such proceedings may there- 
upon be had for the application of the property of the judgment 
debtor toward the satisfaction of the judgment as are provided 
upon the return of an execution. Instead of the order requiring 
the attendance of the judgment debtor, the judge may, upon affi- 
davit of the judgment creditor, his agent or attorney, if it appears 
to him that there is danger of the debtor absconding, order the 
sheriff to arrest the debtor and bring him before such judge. 
Upon being brought before the judge, he may be ordered to enter 
into an undertaking, with sufficient surety, that he will attend 
from time to time before the judge or referee, as may be directed, 
during the pendency of proceedings and until the final termination 



Chap. 13.] CALIFORNIA. 75 

thereof, and will not in the meantime dispose of any portion of his 
property, not exempt from execution. In default of entering into 
such undertaking he may be committed to prison. 

After the issuing of an execution against property, and before 
its return, any person indebted to the judgment debtor may pay to 
the sheriff the amount of his debt, or so much thereof as may be 
necessary to satisfy the execution ; and the sheriff's receipt is a 
sufficient discharge for the amount so paid. 

After the issuing or return of an execution against property of 
the judgment debtor, or of any one of several debtors in the same 
judgment, or upon proof, by affidavit or •otherwise, to the satisfac- 
tion of the judge, that any person or corporation has property of 
such judgment debtor, or is indebted to him in an amount exceeding 
fifty dollars, the judge may, by an order, require such person or 
corporation, or any officer or member thereof, to appear at a speci- 
cified time and place before him, or a referee appointed by him, 
and answer concerning the same. 

Witnesses may be required to appear and testify before the 
judge or referee. The judge or referee may order any property 
of a judgment debtor, not exempt from execution, in the hands of 
such debtor or any other person, or due to the judgment debtor, to 
be applied towards the satisfaction of the judgment. 

If it appear that a person or corporation, alleged to have prop- 
erty of the judgment debtor, or to be indebted to him, claims an 
interest in the property adverse to hijn, or denies the debt, the 
Court or a judge may authorize,. by an order made to that effect, 
the judgment creditor to institute an action 'against such person or 
corporation for the recovery. of such interest or debt; and the 
Court or judge may, by order, forbid a transfer or other disposition 
of such interest or debt, until an action can be commenced and 
prosecuted to judgment. 

If any person, party, or witness disobey an order of the referee, 
properly made, in proceedings before him, he may be punished by 
the Court or judge ordering the reference, for a contempt. 



76 CALIFORNIA. [Part 3. 



Chapter XIV. 



COSTS. . ■ 

The general rule is, that judgment carries costs. 

When, in an action for the recovery of money only, the defend- 
ant alleges in his answer that before the commencement of the 
action he tendered to the plaintitF the full amount to which he was 
entitled, and thereupon de|?osits in Court for the plaintiff the amount 
so tendered, and the allegation be found to be true, the plaintiif 
cannot recover costs, but must pay costs to the defendant. 

When several actions are brought on one bond, undertaking, 
promissory note, bill of exchange, or other instrument in writing, 
or in any other case for the same cause of action, against several 
parties wdio might have been joined as defendants in the same 
action, no costs can be allowed to the plaintiff in more than one of 
such actions, which may be at his election, if the parties proceeded 
against in the other actions were, at the commencement of the 
previous action, openly within this State ; but the disbursements of 
the plaintiff must be allowed to him in each action. 

Security for Costs. 

When the plaintiff in an action resides out of the State, or is a 
foreign corporation, security for the costs and charges, which may 
be awarded against such plaintiff, may be required by the defendant. 
When required, all proceedings in the action must be stayed until 
an undertaking, executed by two or more persons, is filed with the 
clerk, to the effect that they will pay such costs and charges as 
may be awarded against the plaintiff by judgment, or in the pro- 
gress of the action, not exceeding the sum of three hundred dollars. 
A new or additional undertaking may be ordered by the Court or 
judge, upon proof that the original undertaking is insufficient 
security, and proceedings in the action stayed until such new or 
additional undertaking is executed and filed. If such security is 



Chap. 15.] CALIFORNIA. 77 

not given by the plaintiff within thirty days after notice that secur- 
ity is required, the Court or judge may order the action dismissed. 



Chapter XV. 

APPEALS IN CIVIL ACTIONS. 

Appeals in General. 

Within what time appeals may be taken : 

1. From a final judgment in an action or special proceeding 
commenced in the Court in which the same is rendered, within one 
year after the entry of judgment. But an exception to the decision 
or verdict, on the ground that it is not supported by the evidence, 
cannot be reviewed on an appeal from the judgment, unless the 
appeal is taken within sixty days after the rendition of the judg- 
ment. 

2. From a judgment rendered on an appeal fronEi an inferior 
Court, within ninety days after the entry of such judgment. 

3. From an order granting or refusing a new trial ; from an order 
granting or dissolving an injunction ; from an order refusing to 
grant or dissolve an injunction ; from an order dissolving or refus- 
ing to dissolve an attachment ; from an order granting or refusing 
to grant a change of the place of trial ; from any special order 
made after the final judgment, and from an interlocutory judgment 
in actions for partition of real property, within sixty days after the 
order or interlocutory judgment is made and entered in the minutes 
of the Court, or filed with the clerk. 

An appeal is taken by filing with the clerk of the Court in which 
the judgment or order appealed from is entered, a notice stating 
the appeal from the same, or some specific part thereof, and serving 
a similar notice on the adverse party or his attorney. The order of 



78 . CALIFORNIA. [Part 3. 

service is immaterial, but the appeal is ineffectual for any purpose 
unless within five days after service of the notice of appeal, an un- 
dertaking be filed, or a deposit of money be made with the clerk, 
as hereinafter provided, or the undertaking be waived by the ad- 
verse party in writing. 

The undertaking on appeal must be in writing, and must be ex- 
ecuted on the part of the appellant by at least two sureties, to the 
effect that the appellant will pay all damages and co^s which may 
be aw^arded against him on the appeal, or on a dismissal thereof, 
not exceeding three hundred dollars ; or that sum must be depos- 
ited with the clerk with whom the judgment or order was entered, 
to abide the event of the appeal. 

If the appeal be from a judgment or order directing the payment 
of money, it does not stay the execution of the judgment or order, 
unless a written undertaking be executed on the part of the appel- 
lant, by two or more sureties, to the effect that they are bound in 
double the amount named in the judgment or order, that if the 
judgment or order appealed from, or any part thereof, be affirmed, 
or the appeal be dismissed, the appellant will pay the amount 
directed to be paid by the judgment or order, or the part of such 
amount as to which the judgment or order is affirmed, if affirmed 
only in part, and all damages* and costs which may be awarded 
against the appellant upon the appeal ; and that if the appellant 
does not make such payment within thirty days after the fifing of 
the remittitur from the Supreme Court, in the Court from which 
the appeal is taken, judgment may be entered on motion of the re- 
spondent in his favor against the sureties, for such amount, together 
with the interest that may be due thereon, and the damages and 
costs which may be awarded against the appellant upon the appeal. 
If the judgment or order appealed from be for a greater amount 
than two thousand dollars, and the sureties do not state in their 
affidavits of justification accompanying the undertaking, that they 
are each worth the sum specified in the undertaking, the stipulation 
may be that the judgm.ent to be entered against the sureties shall 
be for such amounts only as in their affidavits they may state 
that they are severally worth, and judgment may be entered 
against the sureties by the Court from which the appeal is taken, 



Chap. 15.] CALIFORNIA. 79 

pursuant to the stipulations therein designated. When the judg- 
ment, or order, appealed from is made payable in a specified kind 
of money or currency, the judgmeut entered against the sureties 
upon the undertaking must be made payable in the same kind of 
money or currency. 

When an appeal is perfected, it stays all further proceedings in 
the Court below, upon the judgment or order appealed from, or 
upon the matters embraced therein, and releases from levy property 
which has been levied upon under execution issued upon such judg- 
ment. 

The adverse party may except to the sufficiency of the sureties 
to the undertakings on appeal. 

The foregoing provisions in regard to appeals do not apply to ap- 
peals to the County Court from Justices' or Police Courts. 

Appeals from District Courts. 

An appeal may be taken to the Supreme Court . from the Dis- 
trict Courts in the following cases : 

1. From a final judgment entered in an action or special pro- 
ceeding commenced in those Courts, or brought into those Courts 
from other Courts. 

2. From an order granting or refusing a new trial ; from an or- 
der granting or dissolving an injunction ; from an order refusing to 
grant or dissolve an injunction ; from an order dissolving, or refus- 
ing to dissolve, an attachment ; from an order changing, or refusing 
to change, the place of trial ; from any special order madie after 
final judgment, and from such interlocutory judgment in actions for 
partition as determines the rights and interests of the respective 
parties, and directs partition to be made. 

Appeals from County Courts. 

An appeal may be taken to the Supreme Court from the County 
Courts in the following cases : 

1. From a final judgment in an. action of forcible entry and de- 
tainer ; in an action to prevent or abate a nuisance ; in a proceed- 
ing in insolvency ; and in any special cases and proceedings ; and 



80 CALIFORNIA. [Part 3. 

in cases which involve the legaUtj of any tax, impost, assessment, 
toll, or municipal fine, or in which the demand, exclusive of inter- 
est, or the value of the property in controversy, amounts to three 
hundred dollars. 

2. From an order granting or refusing a new trial in the cases 
herein designated, and from any special order made after final judg- 
ment in such cases. 

Appeals from Probate Courts. 

* An appeal may be taken to the Supreme Court from a judgment 
or order of the Probate Court as follow^s : 

1. Granting, or refusing, or revoking letters testamentary, or of 
administration, or of guardianship. 

2. Admitting, or refusing to admit, a will to probate. 

3. Against or in favor of the validity of a will, or revoking the 
probate thereof. 

4. Against or in favor of setting apart property, or making an 
allowance for a widow or child. 

5. Against or in favor of directing the partition, sale, or convey- 
ance of real property. 

6. Settling an account of an executor, or administrator, or 
guardian. 

7. Refusing, allow^ing, or directing the distribution or partition 
of an estate, or any part thereof, or the payment of a debt, claim, 
legacy, or distributive share. 

8. Overruling a motion for new trial. 

9. Ooniirming a report of an appraiser setting apart the home- 
stead. 

Appeals from Justices' or Police Courts. 

Any party dissatisfied with a judgment rendered in a civil action 
in a Police or Justice's Court may appeal therefrom to the County 
Court of the county, at any time within thirty days after the 
rendition of the judgment. 

Parties appealing on questions of law alone, must prepare a 
statement for the justice or judge. When the appeal is taken on 



Chap. 15.] CALTFORNIA. 81 

questions of fact, or questions of both law and fact, no statement 
need be made, but the action must be tried anew in the County 
Court. 

An appeal from a Justice's or Police Court is not effectual for 
any purpose, unless an undertaking be filed, with two or more 
sureties, in the sum of one hundred dollars, for the payment of 
the costs on the appeal ; or if a stay of the proceedings be claimed, 
in a sum equal to twice the amount of the judgment, including costs, 
when the judgment is for the payment of money ; or twice the value 
of the property, including coats, when the judgment is for the 
recovery of specific personal property ; and must be conditioned, 
when the action is for the recovery of money, that the appellant 
will pay the amount of the judgment appealed from, and all costs, 
if the appeal be withdrawn or dismissed, or the amount of any 
judgment and all costs that may be recovered against him in the 
County Court. When the action is for the recovery of specific 
personal property, the undertaking must be conditioned that the 
appellant will pay the judgment and costs appealed from, and obey 
the order of the Court made therein, if the appeal be withdrawn 
or dismissed, or any judgment and costs that may be recovered 
against him in said action in the County Court, and will obey any 
order made by the Court therein. A deposit of the amount of the 
judgment, including all costs, appealed from, or of the value of the 
property, including all costs, in actions for the recovery of specific 
personal property, with the justice or judge, is equivalent to the 
filing of the undertaking. The adverse party may except to the 
sufficiency of the sureties within five days after the filing of the 
undertaking, and unless they or other sureties justify before the 
justice or judge before whom the appeal is taken, within five days 
thereafter, upon notice to the adverse party, to the amounts stated 
in their affidavits, the appeal must be regarded as if no such under- 
taking had been given. 

On filing the above undertaking, execution must be stayed. For 
a failure to prosecute an appeal, or unnecessary delay in bringing 
it to a hearing, the County Court, after notice, may order the 
appeal to be dismissed. 

6 



82 CALIFORNIA. [Part 3. 



Chaptee XYI. 

NEW TRIALS. 

A new trial may be granted for any of the following causes, 
materially affecting the substantial rights of the party aggrieved : 

1. Irregularity in the proceedings of the Court, jury, or adverse 
party, or any order of the Court, or abuse of discretion, by which 
either party was prevented from having a fair trial. 

2. Misconduct of the jury ; and whenever any one or more of 
the jurors have been induced to assent to any general or special 
verdict, or to finding on any question submitted to them by the 
Court, by a resort to the determination of chance, such misconduct 
may be proved by the affidavit of any one of the jurors. 

3. Accident or surprise, which ordinary prudence could not have 
guarded against. 

4. Newly discovered evidence, material for the party making the 
application, which he could not, with reasonable dihgence, have dis- 
covered and produced at the trial. 

5. Excessive damages, appearing to have been given under the 
influence of passion or prejudice. 

6. Insufficiency of the evidence to justify the verdict or other 
decision, or that it is against law. 

7. Error in law occurring at the trial and excepted to by the 
party making the application. 

The party intending to move for a new trial must, within ten days 
after the verdict, if the action were tried by a jury, or after notice 
of the decision of the Court or referee, if the action were tried 
without a jury, file with the Clerk and serve upon the adverse 
party a notice of his intention, designating the ground upon which 
•the motion will be made. 



Chap. 17.] CALIFORNIA. 83 



Chapter XVII. 

ESTATES OF DECEASED PERSONS. 

Order of persons entitled to administer : 

1. The surviving husband or wife, or some competent person 
whom he or she may request to have appointed. 

2. The children. 

3. The father or mother. 

4. The brothers. 

5. The sisters. 

6. The grandchildren. 

7. The next of Idn entitled to share in the distribution of the es- 
tate. 

8. The creditors. 

9. The public administrator. 

10. Any person legally competent. 

If the deceased was a member of a partnership at the time of his 
decease, the surviving partner must in no case be appointed admin- 
istrator of his estate. 

A married woman must not be appointed administratrix. 

AVhen a creditor is claiming letters, the Court may, in its discre- 
tion, at the request of another creditor,, grant letters to any other 
person legally competent. 

Letters of administration must be granted to any applicant, 
though it appears that there are other persons having better rights 
to the administration, when such persons fail to appear and claim 
the issuing of letters ta themselves. 

The administrator must give bonds, with two or more sufficient 
sureties, to be approved by the probate judge, the penalty to be 
not less than twice the value of the personal property, and twice 
the probable value of the annual rents, profits, and issues of the 
real property : additional bonds may be required, when a sale of 
real estate is ordered. 



84 CALIFORNIA. [Part 3. 

When a person dies leaving a Tvidow or minor children, until 
letters are granted and the inventory is returned, they are entitled 
to remain in possession of the homestead, of the wearing apparel 
of the femily, and of all the household furniture of the decedent, 
and are also entitled to a reasonable provision for their support, to 
be allowed by the probate judge. 

The Court or probate judge may set apart for the use of the 
surviving husband or wife, or the minor children of the decedent, 
all property exempt from execution, including the homestead 
selected, designated and recorded. If no homestead has been 
selected, designated and recorded, the judge or the Court must 
select, designate, set apart and cause to be recorded, a homestead 
for the use of the persons before named. 

If the amount set apart be insufficient for the support of the 
w4dow and children, or either, the Probate Court or judge must 
make such reasonable allowance out of the estate as shall be neces- 
sary for the maintenance of the family, according to their circum- 
stances, during the progress of the settlement of the estate ; which, 
in case of an insolvent estate, must not be longer than one year 
after granting of letters. 

If on the return of the inventory of the estate of an intestate, it 
appears that the value of the whole estate does not exceed the sum 
of fifteen hundred dollars, it must be assigned for the use of the 
widow and minor child or children, after the payment of the 
expenses of his last illness, funeral charges, and the expenses of 
the administration. 

If it appear that the value of the whole estate does not exceed 
the sum of three thousand dollars, there may by a summary ad- 
ministration of the estate, and an order of distribution at the end 
of six months after the issuing of letters. 

Claims against the estate must be presented to the executor or 
administrator within the time specified in the notice to creditors, 
requesting them to present their claims; when the value of the 
estate exceeds ten thousand dollars, the time expressed in the no- 
tice must be ten months ; when it does not exceed ten thousand 
dollars, four mouths. If a claim be not presented within the time 
limited in the notice, it is barred forever ; except where it is made 
to appear, by the affidavit of the claimant, to the satisfaction of 



Chap. 17.] CALIFORNIA. 85 

the executor or administrator, and the probate judge, that the 
claimant had no notice, by reason of being out of the State, it 
may be presented at any time before a decree of distribution is en- 
tered. A cUiIm for a deficiency remaining unpaid after a sale of 
property of the estate, mortgaged or pledged, must be presented 
within one month after such deficiency is ascertained. 

Every claim which is due when presented to the administrator 
must be supported by the affidavit of the claimant, or some one in 
his behalf, that the amount is justly due, that no payments have 
been made thereon which are not credited, and that there are no 
offsets to the same, to the knowledge of the claimant or affiant. 
If the claim be not due when presented, or be contingent, the par- 
ticulars of such claim must be stated. When the affidavit is made 
by a person other than the claimant, he must set forth in the affi- 
davit the reasons vfhy it is not made by the claimant. The oath 
may be taken by any officer authorized to administer oaths. The 
executor or administrator may also require satisfactory vouchers 
or proofs to be produced in support of the claim. If the estate be 
insolvent, no greater rate of interest shall be allowed upon any 
claim, after the first publication of notice to creditors, than seven 
per cent. 

When a claim, accompanied by the affidavit required as afore- 
said, is presented to the executor or administrator, he must endorse 
thereon his allowance or rejection, with the day and date thereof. 
If he allows the claim, it must be presented to the probate judge for 
his approval, who must, in the same manner, indorse upon it his al- 
lowance or rejection. If the executor, or administrator, or judge, re- 
fuse or neglect to endorse such allowance or rejection, for ten days 
after the claim has been presented to him, such refusal or neglect is 
equivalent to a rejection on the tenth day ; and if the presentation 
be made by a notary,- the certificate of such notary, under seal, is 
prima facie evidence of such presentation and rejection. If the claim 
be presented to the executor or administrator before the expiration of 
the time limited for the presentation of claims, the same is presented 
in time, though acted upon by the executor or administrator, and by 
the judge, after the expiration of such time. If a claim be payable 
in a particular kind of money or currency, it shall, if allowed, be 
payable only in such money or currency. 



86 CALIFORNIA. [Part 3. 

Every claim allowed by the executor or administrator, and 
approved by the probate judge, or a copy thereof, must, within 
thirty days thereafter, be filed in the Probate Court. 

If the claim is founded on a bond, bill, note, or any other 
instrument, a copy of such instrument must accompany the claim, 
and the original instrument must be exhibited if demanded, unless 
it be lost or destroyed ; in which case the claimant must accompany 
his claim by his affidavit, containing a copy or particular description 
of such instrument, and state its loss or destruction. Book accounts 
should be made out in detail, and attached to the affidavit in proof 
of claim. If the claim, or any part thereof, is secured by a mort- 
gage or other lien which has been recorded in the office of the 
recorder of the county in which the land affected by it lies, it is 
sufficient to describe the mortgage or lien, and refer to the date, 
volume, and page of its record. A judgment for the recovery of 
money must be presented to the executor or administrator like any 
other claim. A rejected claim must be sued for within three months 
from date of its rejection, if it be then due, or within two months 
after it becomes due ; otherwise the claim is forever barred. 

Claims barred by the statute of limitations must not be allowed. 
No holder of any claim against an estate shall maintain any action 
thereon, unless the claim is first presented to the executor or 
administrator. 

A judgment rendered against a decedent dying after verdict or 
decision on an issue of fact, but before judgment is rendered there- 
on, is not a lien on the real property of the decedent, but is pay- 
able in due course of administration. 

A judgment rendered against an executor or administrator, upon 
any claim for money against the estate, only establishes the claim 
in the same manner as if it had been duly allowed, and the judg- 
ment must be that the executor or administrator pay in due coarse 
of administration the amount ascertained to be due. A certified 
copy of the judgment must be filed in the Probate Court. No 
execution must issue upon such judgment, and no lien is created. 

Every executor or administrator must render a full account and 
a report of his administration at the expiration of one year from 
the time of his appointment. 



Chap. 17.] CALIFORNIA. 87 

Upon the settlement of the accounts at the end of the year, as 
required, the Court must make an order for the payment of the 
debts, as the circumstances of the estate require. 

In case of the death of any employer, the wages of each miner, 
mechanic, salesman, clerk, servant and laborer, for services ren- 
dered within the sixty days next preceding the death of the em- 
ployer, not exceeding one hundred dollars, rank in priority next 
after the funeral expenses, expenses of the last sickness, the charges 
and expenses of administering upon the estate, and the allowance 
to the widow and infant children, and must be paid before other 
claims against the estate of the deceased person. 

The debts of the estate subject to the foregoing provision must 
be paid in the following order : 

1. Funeral expenses. 

2. The expenses of the last sickness. 

3. Debts having preference by the laws of the United States. 

4. Judgments rendered against the decedent in his lifetime, and 
mortgages in the order of their date. 

5. All other demands against the estate. 

The preference in the case of a mortgage only extends to the 
proceeds of the property mortgaged. The deficiency, if any, must 
be classed with the other demands against the estate. 



88 CALIFORNIA. [Part 3. 



Chapter XYIII. 

DESCENTS. 

The property, both real and personal, of one who dies without 
disposing of it by will, passes to the heirs of the intestate, subject to 
the control of the Probate Court, and to the possession of any ad- 
ministrator appointed by that Court for the purposes of administra- 
tion. 

When any person having title to any estate not otherwise limited 
by marriage contract dies without disposing of the estate by will, 
the rule of distribution is as follows, subject to the payment of his 
debts : 

1. If the decedent leave a surviving husband or wife, and only 
one child, or the lawful issue of one child, in equal shares to the sur- 
viving husband, or wife and child, or issue of such child. If the 
decedent leave a surviving husband or wife, and more than one 
child living, or one child living and the lawful issue of one or more 
deceased children, one third to the surviving husband or wife, and 
the remainder in equal shares to his children, and to the lawful issue 
of any deceased child, by right of representation ; but if there be 
no child of the decedent living at his death, the remainder goes to 
all of his lineal descendants ; and if all of the descendants are in 
the same degree of kindred to the decedent, they share equally, 
otherwise they take according to the right of representation. If 
the decedent leave no surviving husband or wife, but leave issue, 
the whole estate goes to such issue ; and if such issue consists of 
more than one child living, or one child living, and the lawful issue 
of one or more deceased children, then the estate goes in equal 
shares to the children living, or to the child living, and the issue of 
the deceased child or children by right of representation. 

2. If the decedent leave no issue the estate goes in equal 
shares to the surviving husband or wife, and to the decedent's 
father. If there be no father, then one-half goes in equal shares 
to the brothers and sisters of the decedent, and to the children of 



Chap. 18.] CALIFORNIA. 89 

any deceased brother or sister, by right of representation ; if he 
leave a mother also, she takes an equal share with the brothers 
and sisters. If the decedent leave no issue, nor husband nor wife, 
the estate must go to his father. 

3. If there be no issue, nor husband, nor wife, nor father, then 
in equal shares to the brothers and sisters of the decedent, and to 
the children of any deceased brother or sister, by right of repre- 
sentation ; if a mother survive, she takes an equal share with the 
brothers and sisters. 

4. If the decedent leave no issue, nor husband, nor wife, nor 
father, and no brother nor sister is living at the time of his death, 
the estate goes to his mother, to the exclusion of the issue, if any, 
of deceased brothers or sisters. 

5. If the decedent leave a surviving husband or wife, and no 
issue, and no father, nor mother, nor brother, nor sister, the whole 
estate goes to the surviving husband. 

6. If the decedent leave no issue, nor husband, nor wife, and no 
father, nor mother, nor brother, nor sister, the estate must go to 
the next of kin, in equal degree, excepting that when there are two 
or more collateral kindred, in equal degree, but claiming through 
different ancestors, those who claimed through the nearest ancestors 
must be preferred to those claiming through an ancestor more re- 
mote ; however, 

7. If the decedent leave several children, or one child and the 
issue of one or more children, and any such surviving child dies 
under age, and not having been married, all the estate that came 
to the deceased child by inheritance from such decedent descends 
in equal shares to the other children of the same parent, and to the 
issue of any such other children who are dead, by right of repre- 
sentation. 

8. If, at the death of such child, who dies under, age, not having 
been married, all the other children of his parents are also dead, 
and any of them have left issue, the estate that came to such child, 
by inheritance from his parent, descends to the issue of all other 
children of the same parent ; and if all the issue are in the same 
degree of kindred to the child, they share the estate equally, other- 
wise they take according to the right of representation. 



90 CALIFORNIA. . [Part 3. 

9. If the decedent leave no husband, wife, or kindred, the estate 
escheats to the State for the support of common schools. 

The above provisions, as to the inheritance of the husband and 
wife from each other, apply only to the separate property of the 
decedents. 

Upon the death of the wife, the entire community property, 
without administration, belongs to the surviving husband, except 
such portion thereof as may have been set apart to her by judicial 
decree, for her support and maintenance, which portion is subject 
to her testamentary disposition, and in the absence of such disposi- 
tion goes to her descendants or heirs, exclusive of her husband. 

Upon the death of the husband, one-half of the community prop- 
erty goes to the surviving wife, and the other half is subject to the 
testamentary disposition of the husband, and in the absence of such 
disposition goes to his descendants, equally, if such descendants 
are in the same degree of kindred to the decedent ; otherwise, 
according to the right of representation ; and in the absence of 
both such dispositions, and such descendants, is subject to distribu- 
tion in the same manner as the separate property of the husband. 
In case of the dissolution of the community by the death of the hus- 
band, the entire community property is equally subject to his debts, 
the family allowance, and the charges and expenses of administra- 
tion. 

Every illegitimate child is an heir of the person who, in writing, 
signed in the presence of a competent witness, acknowledges him- 
self to be the father of such child ; and in all cases is an heir of 
his mother ; and inherits his or her estate, in whole or in part, as 
the case may be, in the same manner as if he had been born in 
lawful wedlock ; but he does not represent his father or mother by 
inheriting any part of the estate of his or her kindred, ^either lineal 
or collateral, unless, before his death, his parents shall have inter- 
married, and his father, after such marriage, acknowledges him as 
his child, or adopts him into his family ; in which case such child 
and all the legitimate children are considered brothers and sisters, 
and on the death of either of them intestate, and without issue, 
the others inherit his estate, and are heirs as hereinbefore provided, 
in like manner as if all the children had been legitimate ; saving to 



Chap. 19.] CALIFORNIA. 91 

the father and mother respectively their rights in the estates of all 
the children in like manner as if all had been legitimate. The 
issue of all marriages null in law, or dissolved by divorce, are legiti- 
mate. 

If an illegitimate child, who has not been acknowledged or 
adopted by his father, dies intestate, without lawful issue, his 
estate goes to his mother, or in case of her decease, to her heirs 
at law. 



Chapter XIX. 

LIENS OF MECHANICS AND OTHERS UPON REAL 

PROPERTY. 

Every person performing labor upon, or furnishing materials to 
be used in the construction, alteration, or repair of any mining 
claim, building, wharf, bridge, ditch, flume, tunnel, fence, ma- 
chinery, railroad, wagon-road, aqueduct to create hydraulic power, 
or any other structure, or who performs labor in any mining claim, 
has a lien upon the same for his work or labor done or materials 
furnished by each, respectively, whether done or furnished at the 
instance of the owner of the building or other improvement, or his 
agent ; and every contractor, sub-contractor, architect, builder, or 
other person having charge of any mining, or of the construction, 
alteration, or repair, either in whole or in part, of any building or 
other improvement, as aforesaid, shall be held to be the agent of 
the owner. 

The land upon which any building, improvement, or structure is 
constructed, together with a convenient space about the same, or 
so much as may be required for the convenient use and occupation 
thereof, to be determined by the Court on rendering judgment, is 
also subject to the lien, if, at the commencement of the work, or 



92 CALIFORNIA. [Part 3. 

of the furnishmg of the materials for the same, the land belonged 
to the person who caused said building, improvement, or structure 
to be constructed, altered, or repaired ; but if such person owned 
less than a fee simple estate in such land, then only his interest 
therein is subject to such lien. 

Improvements are held to be constructed at the instance of 
the owner of the lands, unless he, within three days after he shall 
have received knowledge of the construction, alteration, or repair, 
or intended construction, alteration, or repair, give notice that he 
will not be responsible for the same, by posting a notice in writing 
on the premises in a conspicuous place to that effect. 

Such liens are preferred to any lien, mortgage or other incum- 
brance which may have attached subsequent to the time when the 
building, improvement or structure was commenced, work don^, or 
materials were commenced to be furnished ; also, to any lien, mort- 
gage or other incumbrance, of which the lien-holder had no notice, 
and which was unrecorded at the time the building, improvement 
or structure was commenced, work done, or the materials were 
commenced to be furnished. 

Every original contractor, within sixty days after the completion 
of his contract, and every person, save the original contractor, 
claiming the benefit of this chapter, must, within thirty days after 
the completion of any building, improvement or structure, or after 
the completion of the alteration or repair thereof, or the perform- 
ance of any labor in a mining claim, file for record with the county 
recorder of the county in which such property, or some part thereof, 
is situated, a claim containing a statement of his demand, after de- 
ducting all just credits and offsets, with the name of the owner or 
reputed owner, if known, and also the name of the person by 
whom he was employed, or to whom he furnished the materials, 
with a statement of the terms, time given, and conditions of his 
contract, and also a description of the property to be charged with 
the lien, sufficient for identification, which claim must be verified 
by the oath of himself or of some other person. 

The lien does not bind any building, mining claim, improvement 
or structure, for a longer period than ninety days after the same 
has been filed, unless proceedings be commenced in a proper Court 



Chap. 19.] CALIFORNIA. 93 

within t-hat time to enforce the same ; or if a credit be given, then 
ninety days after the expiration of such credit ; but no lien contin- 
ues in force for a longer time than two years from the time the 
work is completed, by any agreement to give credit. 

In every case in which different liens are asserted against any 
property, the Court in the judgment must declare the rank of each 
lien or class of liens, which shall be hi the following order, viz : 
First. All persons other than the original contractors and sub-con- 
tractors. Second. The sub-contractors. Third. The original 
contractors. And the proceeds of the sale of the property must 
be applied to each lien or class of liens in the order of its rank ; 
and whenever, on the sale of the property subject to the lien, there 
is a deficiency of proceeds, judgment may be docketed for the de- 
ficiency. 

Any number of persons claiming liens may join in the same ac- 
tion, and when separate actions are commenced, the Court may 
consolidate them. The Court may also allow as part of the costs, 
the moneys paid for filing and recording the lien, and reasonable 
attorney's fees in the District and Supreme Courts. Whenever 
materials shall have been furnished for use in the construction, al- 
teration, or repair of any building or other improvement, such ma- 
terials shall not be subject to attachment, execution, or other legal 
process, to enforce any debt due by the purchaser of such mate- 
rials, except a debt due for the purchase money thereof, so long as 
in good faith the same are about to be applied to the construction, 
alteration, or repair of such building, mining claim, or other im- 
provement. 

In a judgment enforcing a mechanic's lien, a personal judgment 
cannot be rendered against those defendants against whom no per- 
sonal claim is established. 



94 CALIFORNIA. [Part. 3. 

Chapter XX. 

LIENS FOR SALARIES AND WAGES. 

In all assignments of property, made by any person to trustees 
or assignees, on account of the inability of the person, at the time 
of the assignment, to pay his debts, or in proceedings in insolven- 
cy, the wages of the miners, mechanics, salesmen, servants, clerks 
or laborers employed by such person, to the amount of one hun- 
dred dollars each, and for services rendered within sixty days pre- 
viously, are preferred claims, and must be paid by such trustees or 
assignees before any other creditor or creditors of the assignor. 

In case of the death of any employer, the wages of each miner, 
mechanic, salesman, clerk, servant and laborer, for services ren- 
dered within the sixty days next preceding the death of the em- 
ployer, not exceeding one hundred dollars, rank in priority next af- 
ter the funeral expenses, expenses of the last sickness, the charges, 
and expenses of administering upon the estate, and the allowance 
to the widow and infant children, and must be paid before other 
claims against the estate of the deceased person. 

In cases of executions, attachments, and writs of a similar nature, 
issued against any person, except for claims for labor done, any 
miners, mechanics, salesmen, servants, clerks and laborers, who 
have claims against the defendant for labor done, may give notice 
of their claims and the amount thereof, sworn to by the person 
making the claim, to the creditor and the officer executing either 
of such writs, at any time before the actual sale of the property 
levied upon ; and unless such claim is disputed by the debtor or a 
creditor, such officer must pay to such person, out of the proceeds 
of the sale, the amount each is entitled to receive for such services 
rendered within the sixty days next preceding the levy of the writ, 
not exceeding one hundred dollars. If any or all of the claims so 
presented, and claiming preference, are disputed by either the 
debtor or a creditor, the person presenting the same must commence 
an action within ten days for the recovery thereof, and must prose- 



Chaps. 21, 22.] California. 95 

cute his action with due diligence, or be forever barred from any 
claim of priority of payment thereof; and the officer shall retain pos- 
session of so much of the proceeds of the sale as may be necessary to 
satisfy such claim, until the determination of such action ; and in 
case judgment be had for the claim, or any part thereof, carrying 
costs, the costs taxable therein shall likeAvise be a preferred claim, 
with the same rank as the original claim. 



Chapter XXI. 

ARBITRATIONS. 



Persons capable of contracting may submit to arbitration any 
controversy which might be the subject of a civil action between 
them, except a question of title to real property in fee or for life. 

The submission to arbitration must be in writing, and may be 
made to one or more persons. 



Chapter XXII. 

HOMESTEADS. 

The homestead consists of the dwelling-house in which the claim- 
ant resides, and the land on which the same is situated, selected as 
hereinafter provided. It may be used as a place of business, but 
actual residence is essential. 

Homesteads may be selected and claimed : 

1. Not exceeding five thousand dollars in value, by any head of 
a family. 



96 CALIFORNIA. [Part 3. 

2. Not exceeding one thousand dollars in value by any other 
person. 

The phrase " head of a family," includes within its meaning: 

1. The husband, when the claimant is a married person. 

2. Every person who has residing on the premises with him or 
her, and under his or her care and maintenance, either: 

(1.) His or her minor child, or the minor child of his or her 
deceased wife or husband. 

(2.) A minor brother or sister, or the minor child of a deceased 
brother or sister. 

(3.) A father, mother, grandfather, or grandmother. 

(4.) The father, mother, grandfather, or grandmother of a de- 
ceased husband or wife. 

(5.) An unmarried sister, or any other of the relatives men- 
tioned who have attained the age of majority, and are unable to 
support themselves. 

The declaration of homestead must be executed, acknowledged, 
and duly recorded in the office of the recorder of the county in 
which the land is situated. From and after the time the declara- 
tion is filed for record, the premises therein described constitute a 
homestead. 

The homestead is exempt from execution or forced sale, except 
in satisfaction of judgments obtained : 

1. Before the declaration of homestead was filed for record, and 
which constitute liens upon the premises. 

2. On debts secured by mechanics', laborers' or vendors' liens 
upon the premises. 

3. On debts secured by mortgages upon the premises, executed 
and acknowledged by the husband and wife, or an unmarried 
claimant. 

4. On debts secured by mortgages upon the premises, executed 
and recorded before the declaration of homestead was filed for rec- 
ord. 

The homestead of a married person cannot be conveyed or in- 
cumbered, unless the instrument is executed and acknowledged by 
both husband and wife. 



Chap. 23.] CALIFORNIA. 97 

If the homestead exceed in value the amount of the homestead 
exeipption, the excess may be reached on execution, but the prop- 
erty must first be appraised, upon application to the county judge. 

The homestead may be abandoned by filing in the office where 
the declaration is filed a declaration of abandonment, duly ex- 
ecuted. 



Chapter XXIII. 

CORPORATIONS. 

Corporations are either public or private. Public corporations 
are formed or organized for the government of a portion of the 
State ; all other corporations are private. 

Private corporations may be formed by the voluntary association 
of any five or more persons. A majority of such persons must be 
residents of this State. They may be formed for any purpose for 
which individuals may lawfully associate themselves. 

The owners of shares in a corporation which has a capital stock 
are called stockholders. If a corporation has no capital stock, the 
corporators and their successors are called members. 

Each stockholder of a corporation is individually and personally 
liable for such proportion of its debts and liabilities as the amount 
of stock or shares owned by him bears to the whole of the sub- 
scribed capital stock or shares of the corporation, and for a Hke 
proportion only of each debt or claim against the corporation. Any 
creditor of the corporation may institute joint or several actions 
against any of its stockholders, for the proportion of his claim pay- 
able by each, and in such action the Court must ascertain the pro- 
portion of the claim or debt for w^hich each defendant is liable, and 
a several judgment must be rendered against each, in conformity 
therewith. If any stockholder pays his proportion of any debt 
1 



98 ' CALIFORNIA. [Part 3. 

due from the corporation, incurred -while he was such stockholder, 
he is relieved from any further personal liability for such debt ; .and 
if an action has been brought against him upon such debt, it shall 
be dismissed as to him upon his paying the costs, or such propor- 
tion thereof as may be properly chargeable against him. The lia- 
bility of each stockholder is determined by the amount of stock or 
shares owned by him at the time the debt or liabihty was incurred ; 
and such liability is not released by any subsequent transfer of 
stock. The term " stockholder " shall apply not only to such per- 
sons as appear by the books of the corporation to be such, but also 
to every equitable owner of stock, although the same appear on the 
books in the name of another, and also to every person who has ad- 
vanced the installments or purchase-money of stock in the name of 
a minor, so long as the latter remains a minor ; and also to every 
guardian or other trustee who voluntarily invests any trust funds in- 
the stock. Trust funds in the hands of a guardian or trustee shall 
not be liable under the provisions of this section by reason of any 
such investment, nor shall the person for whose benefit the invest- 
ment is made be responsible in respect to the stock, until he be- 
comes competent and able to control the same ; but the responsi- 
biUty in the guardian or trustee making the investment shall con- 
tinue until that period. Stock held as collateral security, or by a 
trustee, or in any other representative capacity, does not make the 
holder thereof a stockholder within the meaning of this section, ex- 
cept in the cases above mentioned, so as to charge him with any 
proportion of the debts or liabilities of the corporation ; but the 
pledgor, or person, or estate represented, is to be deemed the stock- 
holder as respects such liabiUty. In corporations having no cap- 
ital* stock, each member is individually and personally liable for his 
proportion of its debts and liabihties, and similar actions may be 
brought against him, either alone or jointly with other members, to 
enforce such habihty, as may be brought against one or more stock- 
holders, and similar judgments may be rendered. 



Chap. 24.] CALIFORNIA. 99 

Chapter XXIV. 

MODE OF TAKING TESTIMONY OF WITNESSES. 

The testimony of witnesses is taken in three modes, viz : 

1. By affidavit. 

2. By deposition. 

8. By oral examination. 

An affidavit is a written declaration, under oath, made without 
notice to the adverse party. 

A deposition is a written declaration, under oath, made upon 
notice to the adverse party, for the purpose of enabhng him to at- 
tend and cross-examine. 

An oral examination is an examination in presence of the jury or 
tribunal which is to decide the fact, or act upon it ; the testimony 
being heard by the jury or tribunal from the lips of the witness. 

Depositions must be taken in the form of question and answer, 
and the words of the witness must be written down, unless the par- 
ties agree to a different mode. 

Affidavits are used to verify pleadings, or to prove service of 
papers, and such Hke. 

Testimony of witnesses out of this State may be taken by deposi- 
tion, at any time after service of summons, or the appearance of the 
defendant. 

Testimony of witnesses in this State may be taken by deposition, 
in any action, at any time after the service of the summons, or the 
appearance of the defendant, in the following cases : 

1. When the witness is a party to the action or proceeding, or a 
person for whose immediate benefit the action or proceeding is 
prosecuted or defended. 

2. When the witness resides out of the county in which the tes- 
timony is to be used. 

3. When the witness is about to leave the county where the ac- 
tion is to be tried, and will probably continue absent when the tes- 
timony is required. 



100 ^ CALIFORNIA. [Part 3. 

4. When the witness, otherwise liable to attend the trial, is nev- 
ertheless too infirm to attend. 

5. When the testimony is required upon a motion, or in any 
other case where the oral examination of the witness is not required. 

The deposition of a witness out of this State may be taken upon 
commission issued from the Court, under the seal of the Court, 
upon an order of the judge or Court, or county judge, on the appli- 
cation of either party, upon five days previous notice to the other. 
If issued to any place within tlje United States, it may be directed 
to a person agreed upon by the parties ; or if they do not agree, to 
any judge or justice of the peace, or commissioner, selected by the 
officer issuing it. If issued to any country out of the United States, 
it may be directed to a minister, embassador, consul, vice-consul, 
or consular agent of the United States, in such country, or to any 
person agreed upon by the parties. 

The deposition of a witness in this State may be taken by either 
party before a judge or officer authorized to administer oaths, on 
serving upon the adverse party previous notice of the time and 
place of examination, together with a copy of an affidavit, showing 
that it is a case wherein deposition may be used. Such notice must 
be at least five days, adding also one day for every twenty-five 
miles of the distance of the place of examination from the residence 
of the person to whom the notice is given, unless, for a cause 
shown, a judge, by order, prescribe a shorter time. When a 
shorter time is prescribed, a copy of the order must be served with 
the notice. 



Chapter XXV. 



JUDICIAL RECORDS, HOW PROVED. 

A judicial record is the record or official entry of the proceed- 
ings in a Court of justice, or of the official act of a judicial officer, 
in an action or special proceeding. 



Chap. 25.] CALIFORNIA. 101 

A judicial record of this State, or of the United States, mav be 
proved by the production of the original, or of a copy thereof cer- 
tified by the clerk or other person having the legal custody thereof. 
That of a sister State may be proved by the attestation of the 
clerk and the seal of the Court annexed, if there be a clerk and 
seal, together with a certificate of the chief judge or presiding 
magistrate, that the attestation is in due form. 

A judicial record of a foreign country may be proved by the 
attesfation of the clerk, with the seal of the Court annexed, if 
there be a clerk and seal, or of the legal keeper of the record, 
with the seal of his ofiice annexed, if there be a seal, together with 
a certificate of the chief judge or presiding magistrate, that the 
person making the attestation is the clerk of the Court or the legal 
keeper of the record ; and in either case, that the signature of 
such person is genuine, and that the attestation is in due form. 
The signature of the chief judge or presiding magistrate must be 
authenticated by the certificate of the minister or embassador, or a 
consul, vice-consul, or consular agent of the United States in such 
foreign country. 

A copy of the judicial record of a foreign country is also ad- 
missible in. evidence, upon proof: 

1. That the copy offered has been compared by the witness 
with the original, and is an exact transcript of the whole of it. 

2. That such original was in the custody of the clerk of the 
Court or other legal keeper of the same ; and, 

3. That the copy is duly attested by a seal which is proved to 
be the seal of the Court where the record remains, if it be the 
record of a Court ; or if there be no such seal, or if it be not a 
record of a Court, by the signature of the legal keeper of the 
original. 



102 CALIFORNIA. [Part 3. 



Chapter XXVI. 

ACKNOWLEDGMENTS. 

The proof or acknowledgment of an instrument may be made 
at any place within this State, before a justice or clerk of the 
Supreme Court. 

The proof or acknowledgment of an instrument may be made 
in this State within the city, county or district for which the officer 
was elected or appointed, before either : 

1. A judge or clerk of a Court of record ; or, 

2. A mayor or recorder of a city ; or, 

3. A court commissioner ; or, 

4. A county recorder ; or, 

5. A notary pubHc ; or, 

6. A justice of the peace. 

The proof or acknowledgment of an instrument may be made 
without this State, but within the United States, and within the 
jurisdiction of the officer, before either : 

1. A justice, judge, or clerk of any Court of record of the 
United States ; or, 

2. A justice, judge, or clerk of any Court of record of any 
State ; or, 

3. A commissioner appointed by the Governor of this State for 
that purpose ; or, 

4. A notary public ; or, 

5. Any other officer of the State where the acknowledgment is 
made, authorized by its laws to take such proof or acknowledgment. 

A proof or acknowledgment of an instrument may be made with- 
out the United States, before either : 

1. A minister, commissioner, or charge d'affaires of the United 
States, resident and accredited in the country where the proof or 
acknowledgment is made ; or, 

2. A consul, vice-consul, or consular agent of the United States, 
resident in the country where the proof or acknowledgment is 
made; or, 



Chap. 26.] CALIFORNIA. 103 

3. A judge of a Court of record of the county where the proof 
or acknowledgment is made ; or, 

4. Commissioners appointed for such purposes by the governor 
of the State, pursuant to special statutes ; or, 

5. A notary public. 

If any of the above named officers are authorized by law to ap- 
point a deputy, the acknowledgment or proof may be taken by such 
deputy in the name of his principal. 

The acknowledgment of an instrument must not be taken, unless 
the officer taking it knows, or has satisfactory evidence, on the oath 
or affirmation of a credible witness, that the person making such 
acknowledgment is the individual who is described in and who 
executed the instrument ; or if executed by a corporation, that the 
person making such acknowledgment is the president or secretary 
of such corporation. 

The acknowledgment of a married woman to an instrument pur- 
porting to be executed by her must not be taken, unless she is made 
acquainted by the officer with the contents of the instrument on an 
examination without the hearing of her husband ; nor certified, un- 
less she thereupon acknowledges to the officer that she executed 
the instrument, and that she does not wish to retract such execution. 

General Form of Certificate. 
State of 



. ss. 
County of- 

On this day of , in the year , before me, [here 

insert the name and quality of the officer] personally appeared 

, known to me [or proved to me on the oath of ] to 

be the person whose name is subscribed to the within instrument, 
and acknowledged to me that he [or they] executed the same. 

Form of Certificate of Acknowledgment by Married 

Woman. 



State of- 



County of- 



ss. 



On this day of , in the year , before me, [here 



104 CALIFORNIA. [Part 3. 

insert the name and quality of the officer] personally appeared 

, known to me [or proved to me on the oath of ] to 

be the person whose name is subscribed to the within instrument, 
described as a married woman; and upon an examination without 
the hearing of her husband, I made her acquainted with the con- 
tents of the instrument ; and thereupon she acknowledged to me 
that she executed the same, and that she does not wish to retract 
such execution. 

Form of Certificate of Acknowledgment by a Corporation. 
State of 



ss 
County of- 

On this day of , in the year , before me [here 

insert the name and quality of the officer] personally appeared 

known to me [or proved to me on the oath of ] 

to be the president [or the secretary] of the corporation that exe- 
cuted the written instrument, and acknowledged to me that such 
corporation executed the same. 

Form of Certificate of Acknowledgment by Attorney in 

Fact. 

State of- 
County of- 



On this -day of , in the year , before me [here 

insert the name and quality of the officer] personally appeared 

, known to me [or proved to me on the oath of ] 

to be the person whose name is subscribed to the within instrument 

as the attorney in fact of , and acknowledged to me that he 

subscribed the name of thereto, as principal, and his own 

name as attorney in fact. 

Officers must authenticate their certificates by affixing thereto 
their signatures, followed by the names of their offices ; also their 
seals of office, if by the laws of the State or country where the 
acknowledgment or proof is taken, or by authority of which they 
are acting, they are required to have official seals. 



Chap. 27.] CALIFORNIA. 105 

The certificate of proof or acknowledgment, if made before a 
justice of the peace, when used in any county other than that in 
which he resides, must be accompanied by a certificate under the 
hand and seal of the clerk of the county in which the justice resides, 
setting forth that such justice, at the time of taking such proof or 
acknowledgment, was authorized to take the same, and that the 
clerk is acquainted with his hand-writing, and believes that the sig- 
nature to the original certificate is genuine. 



Chapter XXVII. 

PARTNERSHIPS. 

Partnership is the association of two or more persons for the pur- 
pose of carrying on business together, and dividing its profits be- 
tween them. 

Every partnership that is not formed in accordance with the law 
concerning mining or special partnerships, and every special part- 
nership, so far only as the general partners are concerned, is a gen- 
eral partnership. 

Every general partner is agent for the partnership in the trans- 
action of its business, and has authority to do whatever is necessary 
to carry on such business in the ordinary manner, and for this pur- 
pose may bind his copartners by an agreement in writing. 

A partner, as such, has not authority to do any of the follow- 
ing acts, unless his copartners have wholly abandoned the business 
to him, or are incapable of acting : 

1. To make an assignment of the partnership property or any 
portion thereof to a creditor, or to a third person in trust, for the 
benefit of a creditor or of all creditors. 

2. To dispose of the good will of the business. 



106 CALIFORNIA. [Part 3. 

3. To dispose of the whole of the partnership property at once, 
unless it consists entirely of merchandise. 

4. To do any act which would make it impossible to carry on the 
ordinary business of the partnership. 

5. To confess a judgment. 

6. To submit a partnership claim to arbitration. 

7. To do any act which is not necessary to carry on such busi- 
ness in the ordinary manner. 

Every general partner is liable to third persons for all the obli- 
gations of the partnership, jointly with his copartners. 

Any one permitting himself to be represented as a partner, gen- 
eral or special, is liable as such to third persons to whom such rep- 
resentation is communicated, and who, on the faith thereof, give 
credit to the partnership. 

The liability of a general partner for the acts of his copartners 
continues, even after a dissolution of the copartnership, in favor of 
persons who have had dealings with and given credit to the partner- 
ship during its existence, until they have had personal notice of the 
dissolution ; and in favor of other persons until such dissolution has 
been advertised in a newspaper published in every county where 
the partnership, at the time of its dissolution, had a place of busi- 
ness, if a newspaper is there published, to the extent in either case 
to which such persons part with value in good faith, and in the 
belief that such partner is still a member of the firm. 

After the dissolution of a partnership, any general partner may 
act in liquidation of its affairs, unless the liquidation is committed, 
by consent of ail the partners, to one or more of them ; and in such 
case the others have no right to act therein, but their acts are 
valid in favor of persons parting with value, in good faith, upon 
credit thereof. 

A partner authorized to act in liquidation may collect, compro- 
mise, or release any debts due to the partnership, pay or compro- 
mise any claims against it, and dispose of the partnership property ; 
and he may indorse, in the name of the firm, promissory notes or 
other obligations held by the partnership, for the purpose of collect- 
ing the same ; but he cannot create any new obligation in its name, 
or revive a debt against the firm by an acknowledgment, when an 
action thereon is barred. 



Chap. 27.] CALIFORNIA. 107 

Except as hereafter provided, every partnership transacting 
business in this State under a fictitious name, or a designation 
not showing the names of the persons interested as partners in 
such business, must file with the clerk of the county in which its 
principal place of business is situated a certificate -stating the names 
in full of all the members of such partnership and their places of 
residence, and publish the same once a week for four successive 
weeks in a newspaper published in the county, if there be one, and 
if there be none in such county, then in a newspaper published in 
an adjoining county. 

A commercial or banking partnership, established and transact- 
ing business in a place without the United States, may, without 
filing the certificate, or making the publication heretofore men- 
tioned, use in this State the partnership name used by it there, 
although it be fictitious, or do not show the names of the persons 
interested as partners in such business. 

The certificate filed with the clerk must be signed by the part- 
ners, and acknowledged before some officer authorized to take the 
acknowledgment of conveyances of real property. Where the 
partnership is formed after the first of July, eighteen hundred 
and seventy-four, the certificate must be filed and the publication 
made- within one month after the formation of the partnership, or 
within one month from the time desio;nated in the aorreement of its 
members for the commencement of the partnership. Where the 
partnership has been formed prior to the first of July, eighteen 
hundred and seventy-four, the certificate must be filed and the 
publication made within six months after the first of July aforesaid. 

On every change in the members of a partnership transacting 
business in this State under a fictitious name, or a designation 
which does not show the names of the persons interested as part- 
ners in its business ; except in the case of a commercial or bank- 
ing partnership, established and transacting business in a place 
without the United States, as well as in this State, a new certificate 
must be filed and a new publication made, as is required on the 
formation of such partnership. 

Persons doing business as partners contrary to the aforesaid 
provisons, shall not maintain any action upon or on account of any 



108 CALIFORNIA. [Part . 

contract made or transactions had in their partnership name, in any 
Court of this State, until they have first filed the certificate and 
made the publication required. Copies of the entries of a county 
clerk, when certified by him, and affidavits of publication made by 
the printer, publisher, or chief clerk of a newspaper, are presump- 
tive evidence of the facts therein stated. 

Special partnerships are formed by filing a certificate with the 
county clerk and recorder, severally signed, stating : 

1. The name under which the partnership is to be conducted. 

2. The general nature of the business intended to be transacted. 

3. The names of all the partners, and their residences, specify- 
ing which are general and which are special partners. 

4. The amount of capital which each special partner has con- 
tributed to the common stock. 

5. The periods at which such partnerships shall begin and end.^ 
Affidavits must be made and filed, setting forth the amount act- 
ually contributed by the special partners. 

The certificate mentioned must be published in a newspaper in 
the county, once a week for four successive weeks. 

The general partners in a special partnership are liable to the 
same extent as partners in a general partnership. The contribu- 
tion of a special partner to the capital of the firm, and the increase 
thereof, is liable for its debts, but he is not otherwise liable therefor. 



Chapter XXVIII. 



MARRIED WOMEN. 



All property of the wife owned by her before marriage, and that 
acquired afterwards by gift, bequest, devise, or descent, with the 
rents, issues, and profits thereof, is her separate property. All 



Chap. 28.] CALIFORNIA. 109 

property owned by the husband before marriage, and that acquired 
afterwards by gift, bequest, devise, or descent, Avith the rents, 
issues, and profits thereof, is his separate property. All other 
property acquired after marriage, by either husband or wife, or 
both, is community property. The earnings of the wife are not 
liable for the debts of the husband. The earnings and accumula- 
tions of the wife, and her minor children living with her and in her 
custody, while she is living separate from her husband, are the 
separate property of the wife. 

The separate property of the wife is not liable for the debts of 
her husband, but is liable for her own debts, contracted before or 
after marriage. The separate property of the husband is not liable 
for the debts of the wife contracted before marriage. The property 
of the community is not liable for the contracts of the wife made 
after marriage, unless secured by a pledge or mortgage thereof 
executed by the husband. 

The husband has the management and control of the community 
property, with the like absolute power of disposition (other than 
testamentary) as he has of his separate estate. No estate in 
dower is allotted to the wife upon the death of her husband. 

If the husband neglects to make adequate provision for the sup- 
port of his wife, any other person may, in good faith, supply her 
with articles necessary for her support, and recover the reasonable 
value thereof from the husband ; except that a husband abandoned 
by his wife is not liable for her support until she offers to return, 
unless she was justified, by his misconduct, in abandoning him ; 
nor is he liable for her support when she is living separate from 
him, by agreement, unless such support is stipulated in the agree- 
ment. 

A married woman may become a sole trader by the judgment of 
the County Court of the county in which she has resided for six 
months next preceding the application. 

A certified copy of the decree of the Court must be recorded 
in the office of the recorder of the county where the business is to 
be carried on. 

A sole trader is entitled to carry on the business specified in her 
own name, and the property, revenues, moneys and credits so by 



110 CALIFORNIA. [Part 3. 

her invested, and the profits thereof, belong exchisively to her, 
and are not liable for any debts of her husband. The husband of 
a sole trader is not liable for any debts contracted by her in the 
course of her sole trader's business, unless contracted upon his 
written consent. 



Chapter XXIX. 

MINORS. 



Minors are males under twenty-one years of age, females under 
eighteen years of age. 

A minor cannot give a delegation of power, nor, under the age 
of eighteen, make a contract relating to real property, or any 
interest therein, or relating to any personal property not in his 
immediate possession or control. A minor may make any other 
contract, in the same manner as an adult, subject to his power of 
disaffirmance. A minor cannot disaffirm a contract, otherwise vahd, 
to pay the reasonable value of things necessary for his support, or 
that of his family, entered into by him when not under the care of 
a parent or guardian able to provide for him or them. Nor can a 
minor disaffirm an obligation, otherAvise valid, entered into by him 
under the express authority or direction of a statute. In all other 
cases, the contract of a minor, if made whilst he is under the age 
of eighteen, may be disaffirmed by the minor himself, either before 
his majority, or within a reasonable time afterwards ; or in case of 
his death within that period, by his heirs or personal representa- 
tives ; and if the contract be made by the minor whilst he is over 
the age of eighteen, it may be disaffirmed in like manner, upon 
restoring the consideration to the party from whom it was received, 
or paying its equivalent. 

If a parent neglect to provide articles necessary for his child, 



Chap. 30.] CALIFORNIA. Ill 

who is under his charge, according to his circumstances, a third 
person may in good faith supply such necessaries, and recover the 
reasonable value thereof from the parent. 

A minor may enforce his rights by civil action, or other legal 
proceedings, in the same manner as a person of full age, except 
that a guardian must conduct the same. 



Chapter XXX. 

STOPPAGE IN TRANSIT. 

A seller or consignor of property, whose claim for its price or 
proceeds has not been extinguished, may, upon the insolvency of 
the buyer or consignee becoming known to him after parting with 
the property, stop it while on its transit to the buyer or consignee, 
and resume possession thereof. A person is insolvent, within the 
meaning of the above term, when he ceases to pay his debts in the 
manner usual with persons of his business, or when he declares his 
inability or unwillingness to do so. The transit of property is at an 
end when it comes into the possession of the consignee, or into that 
of his agent, unless such agent is employed merely to forward the 
property to the consignee. Stoppage in transit can be effected only 
by notice to the carrier or depositary of the property, or by taking 
actual possession thereof. 

Stoppage in transit does not, of itself, rescind a sale, but is a 
means of enforcing the lien of the seller. 

A bona fide transfer of a bill of lading defeats the right of 
stoppage in transit, if such transfer is made before the right of 
stoppage has been actually exercised by the consignor. 



CALIFORNIA. [Part 3. 



Chapter XXXI. 

BILLS OF LADING. 

A bill of lading is an instrument in writing, signed bj a carrier or 
his agent, describing the freight so as to identify it, stating the 
name of the consignor, the terms of the contract for carriage, and 
agreeing or directing that the freight be delivered to the order or 
assigns of a specified person, at a specified place. 

The title to the freight which the first holder of a bill of lading 
had when he received it passes to every subsequent indorsee there- 
of, in good faith and for value, in the ordinary course of business, 
with like effect, and in like manner, as in the case of a bill of ex- 
change. If a bill of lading is made payable to " bearer," it is 
transferable by delivery. 



Chapter XXXII. 

INTEREST. 

Unless there is an express contract in writing fixing a different 
rate, interest is payable -on all moneys at the rate of ten per cent, 
per annum, after they become due, on any instrument of writing 
except a judgment, and on moneys lent or due on any settlement 
of accounts from the day on which the balance is ascertained, and 
On moneys received to the use of another, and detained from him. 
In the computation of interest for a period less than a year, three 
hundred and sixty days are deemed to constitute a year. 

Interest is payable on judgments recovered in the Courts of this 



Chap. 33.] CALIFORNIA. 113 

State at the rate of seven per cent, per annum, and no greater 
rate ; but such interest must not be compounded in any manner or 
form. 

Parties may agree in writing for the payment of any rate of in- 
terest, and it shall be allowed, according to the terms of the agree- 
ment, until the entry of judgment ; and they may, in any contract 
in writing whereby any debt is secured to be paid, agree that if 
the interest on such debt is not punctually paid, it shall become a 
part of the principal, and thereafter bear the same rate as the 
principal debt. 

Open accounts do not bear interest. 



Chapter XXXIII. 

COMMON CARRIERS. 

Unless the consignor accompanies the freight, and retains exclu- 
sive control thereof, an inland common carrier of property is liable, 
from the time that he accepts until he relieves himself from liability^ 
for the loss or injury thereof, except : 

1. An inherent defect, vice, or weakness, or a spontaneous ac'- 
tion of the property itself. 

2. The act of a public enemy of the United States, or of this- 
State. 

3. The act of the law ; or 

4. Any irresistible superhuman cause. 

He is liable, even in the cases above excepted, if his ordi- 
nary negligence exposes the property to the cause of the loss. A 
common carrier is liable for delay only when it is caused by his 
want of ordinary care and diligence. 

A marine carrier is liable in like manner as an inland carrier,, 
except for loss or injury caused by the perils of the sea or firo. 



114 CALIFORNIA. [Part 3. 

Chapter XXXIY. 

MORTGAGES OF PERSONAL PROPERTY. 

Mortgages may be made upon : 

1. Locomotives, engines, and the other rolling stock of a rail- 
road. 

2. Steamboat machinery, and machinery used by machinists, 
foundrymen, and mechanics. 

3. Steam engines and boilers. 

4. Mining machinery. 

5. Printing presses and material. 

6. Professional libraries. 

7. Instruments of a surgeon, physician, or dentist. 

8. Upholstery and furniture used in hotels or boarding houses, 
when mortgaged to secure the purchase money of the articles mort- 
gaged. 

9. Growing crops. 

10. Vessels of more than five tons' burden. 
A mortgage of personal property is void as against creditors of 
the mortgagor, and subsequent purchasers and incumbrancers of 
the property in good faith and for value, unless — 

1. It is accompanied by the affidavit of all the parties thereto 
that it is made in good faith, and without any design to hinder, de- 
lay, or defraud creditors. 

2. It is acknowledged or proved, certified and recorded. 

A mortgage of personal property must be recorded in the office 
of the county recorder of the county in which the mortgagor re- 
sides, and also of the county in which the property mortgaged is 
situated,"or to which it may be removed. 

A certified copy of a mortgage of personal property once re- 
corded may be recorded in any other county, and when so 
recorded, the record thereof has the same force and effect as 
though it was of the original mortgage. 

When property mortgaged is thereafter by the mortgagor re- 



Chap. 34.] CALIFORNIA. 115 

moved from the coiintj in which it is situated, it is, except as 
between the parties to the mortgage, exempt from the operation 
thereof, unless either : 

1. The mortgagee, within thirty days after such removal, causes 
the mortgage to be recorded in the county to which the property 
has been removed ; or, 

2. The mortgagee, within thirty days after such removal, takes 
possession of the property, as prescribed in the next paragraph. 

If the mortgagor voluntarily removes or permits the removal of 
the mortgaged property from the county in which it was situated 
at the time it was mortgaged, the mortgagee may take possession 
and dispose of the property as a pledge for the payment of the 
debt, though the debfis not due. 

Personal property mortgaged may be taken under attachment or 
execution issued at the suit of a creditor. Before the property is 
so taken, the officer must pay or tender to the mortgagee the 
amount of the mortgage debt and interest, or must deposit the 
amount thereof with the county clerk or treasurer, payable to the 
order of the mortgagee. 

When the property thus taken is sold under process, the officer 
must apply the proceeds of sale as follows : 

. 1. To the repayment of the sum paid to the mortgagee, with in- 
terest from the date of such payment ; and, 

2. The balance, if any, in like manner as the proceeds of sales 
under execution are applied in other casas. 

A mortgagee of personal property, when the debt to secure 
which the mortgage was executed becomes due, may foreclose the 
mortgagor's right of redemptioii by a sale of the property made in 
the manner prescribed in the chapter on "pledge," or may proceed 
by a judicial sale under the direction of a competent Court. 



116 CALIFORNIA. fPart 3. 



Chapter XXXV. 

PLEDGE. 

A pledge is a deposit of personal property by way of security 
for the performance of another act. 

Where a debtor has obtained credit, or an extension of time, by 
a fraudulent misrepresentation of the value of property pledged by 
or for him, the creditor may demand a further pledge to correspond 
with the value represented ; and in default thereof may recover 
his debt immediately, though it be not actually due. 

When performance of the act for which a pledge is given is 
due, in whole or in part, the pledgee may collect what is due to 
him by a sale of the property pledged. 

Before property pledged can be sold, and after performance of 
the act for which it is security is due, the pledgee must demand 
performance thereof from the debtor, if the debtor can be found. 

A pledgee must give actual notice to the pledgor of the time 
and place at which the property pledged will be sold, at such a 
reasonable time before the sale as will enable the pledgor to at- 
tend. 

The sale by a pledgee of property pledged must be made by 
public auction, in the rjanner and upon the notice to the public 
usual at the place of sale, in respect to auction sales of similar 
property ; and must be for the highest obtainable price. 

A pledgee cannot sell any evidence of debt pledged to him, 
except the obligations of governments, States, or corporations ; but 
he may collect the same when due. 

The pledgor may require the property to be sold when it will 
bring a sufficient amount to satisfy the claim of the pledgee. 

A pledgee or pledge holder cannot purchase the property pledged, 
except by direct dealings with the pledgor. 

Instead of selling property pledged, as hereinbefore provided, a 
pledgee may foreclose the right of redemption by a judicial sale, 
under the directions of a competent Court ; and in that case may 
be authorized by the Court to purchase at the sale. 



Chap. 36.] CALIFORNIA. 117 

Chapter XXXVI. 

GUARANTY AND SURETYSHIP. 

A guaranty is a promise to answer for the debt, default, or mis- 
carriage of another person. 

Where a guaranty is entered into at the same time with the orig- 
inal obHgation, or with the acceptance of the latter by the guarantee, 
and forms with that obligation a part of the consideration to him, 
no other consideration need exist. In all other cases there must 
be a consideration distinct from that of the original obligation. 

Except as hereinafter described, a guaranty must be in writing, 
and signed by the guarantor ; but the writing need not express a 
consideration. 

A promise to answer for the obligation of another, in any of the 
following cases, is deemed an original obligation of the promisor, 
and need not be in writing : 

1. Where the promise is made by one who has received property 
of another upon an undertaking to apply it pursuant to such prom- 
ise ; or by one who has received a discharge from an obligation in 
whole or in part, in consideration of such promise. 

2. W^here the creditor parts with value, or enters into an obli- 
gation in consideration of the obligation in respect to which the 
promise is made, in terms or under circumstances such as to ren- 
der the party making the promise the principal debtor, and the 
person in whose behalf it is made his surety. 

3. Where the promise, being for an antecedent obligation of 
another, is made upon the consideration that the party receiving it 
cancels the antecedent obUgation, accepting the new promise as a 
substitute therefor ; or upon the consideration that the party receiv- 
ing it releases the property from a levy, or his person from imprison- 
ment, under an execution on a judgment obtained upon the antece- 
dent obligation ; or upon a consideration beneficial to the promisor, 
whether moving from either party to the antecedent obligation, or 
from another person. 



118 CALIFORNIA. [Part 3. 

4. Where a factor undertakes, for a commission, to sell merchan- 
dise and guarantee the sale. 

5> Where the holder of an instrument for the payment of money, 
upon which a third person is or may become liable to him, transfers 
it in payment of a precedent debt of his own, or for a new consid- 
eration, and in connection with such transfer enters into a promise 
respecting such instrument. 

A guarantor is exonerated, exept so far as he may be indemnified 
by the principal, if by any act of the creditor without the consent 
of the guarantor the original obhgation of the principal is altered 
in any respect, or the remedies or rights of the creditor against 
the principal in respect thereto are in any way impaired or sus- 
pended. 

A surety is one who, at the request of another, and for the 
purpose of securing to him a benefit, becomes responsible for the. 
performance, by the latter, of some act in favor of a third person, 
or hypothecates property as security therefor. 

A surety is exonerated : 

1. In like manner with a guarantor. 

2. To the extent to which he is prejudiced by any act of the 
creditor which would naturally prove injurious to the remedies of 
the surety, or inconsistent with his rights, or which lessens his 
security ; or, 

3. To the extent to which he is prejudiced by an omission of the 
creditor to do anything, when required by the surety, which it is 
his duty to do. 

A surety has all the rights of a guarantor. 

A surety may require his creditor to proceed against the princi- 
pal, or to pursue any other remedy in his power which the surety 
cannot himself pursue, and which would lighten his burden ; and 
if in such case the creditor neglects to do so, the surety is exon- 
erated ti) the extent to which he is thereby prejudiced. 

A surety may compel his principal to perform the obligation 
when due. 

A surety, upon satisfying the obligation of the principal, is 
entitled to enforce every remed}^ which the creditor then has 
against the principal, to the extent of reimbursing what he has 



Chap. 37.] CALIFORNIA. 119 

expended, and also to require all his co-sureties to contribute 
thereto, without regard to the order of time in which they became 
such. 

Whenever property of a surety is hypothecated with property of 
the principal, the surety is entitled to have the property of the 
principal first applied to the discharge of the obligation. 

Letter of Credit. 

A letter of credit is a written instrument, addressed by one 
person to another, requesting the latter to give credit to the 
person in whose favor it is drawn. 

The writer of a letter of credit is, upon the default of the 
debtor, liable to those who gave credit in compliance with its terms. 



Chapter XXXVII 



SALE. 



No sale of personal property, or agreement to buy or sell it, for 
a price of two hundred dollars or more, is valid, unless : 

1. The agreement, or some note or memorandum thereof, be in 
writing, and subscribed by the party to be charged, or by his 
agent ; or, * 

2. The buyer accepts and receives part of the thing sold, or 
when it consists of a thing in action, part of the evidences thereof, 
or some of them ; or, 

3. The buyer, at the time of sale, pays a part of the price. 

The foregoing provisions do not affect an agreement to manufac- 
ture a thing from materials furnished by the manufacturer or by 
another person. 



120 CALIFORNIA. [Part 3. 

No agreement for the sale of real property, or of an interest 
therein, is valid, unless the same, or some note or memorandum 
thereof, be in writing, and subscribed by the party to be charged, 
or his agent thereunto authorized in writing. 

If a buyer of personal property does not pay for it according to 
contract, and it remains in the possession of the seller after pay- 
ment is due, the seller may rescind the saie, or enforce his lien for 
the price. 

In order to make a sale of personal property effectual as against 
creditors, there must be an immediate, actual, and continued change 
of possession. 



Chapter XXXYIII. 

CONTRACTS. 

A contract is an agreement to do or not to do a certain thing. 
It is essential to the existence of a contract that there should be : 

1. Parties capable of contracting. 

2. Their consent. 

3. A lawful object. 

4. A sufficient cause of consideration. 

A written instrument is presumptive evidence of consideration. 

Contracts are either express or implied. 

An express contract is one, the terms of which are stated in 
words. 

An implied contract is one, the existence and terms of which are 
manifested by conduct. 

The following contracts are invalid, unless the same, or some 
note or memorandum thereof, be in writing, and subscribed by the 
party to be charged, or by his agent : 



Chap. 39.] CALIFORNIA. 121 

1. An agreement that by its terms is not to be performed with- 
in a year from the making thereof. 

2.' A special promise to answer for the debts, default or miscarri- 
age of another, except in the cases mentioned in Chapter XXXVI. 

3. An agreement made upon consideration of marriage, other 
than a mutual promise to marry. 

4. An agreement for the sale of goods, chattels, or things in 
action, at a price not less than two hundred dollars, unless the buyer 
accept or receive part of such goods and chattels, or the evidences, 
or some of them, of such things in action, or pay at the time some 
part of the purchase money ; but when a sale is made by auction, 
an entry by the auctioneer in his sale book, at the time of the sale, 
of the kind of property sold, the terms of sale, the price, and the 
names of the purchaser and person on whose account the sale is 
made, is a sufficient memorandum. 

5. An agreement for the leasing for a longer period than one 
year, or for the sale of real property, or of an interest therein ; 
and such agreement, if made by an agent of the party sought to 
be charged, is invalid, unless the authority of the agent be in 
writing, subscribed by the party sought to be charged. 

All contracts may be oral, except such as are specially required 
by statute to be in writing. 



Chapter XXXIX. 

NEGOTIABLE INSTRUMENTS. 

A bill of exchange is an instrument negotiable in form, by which 
one, who is called the drawer, requests another, called the drawee, 
to pay a specified sum of money. 



122 CALIFORNIA. [Part 3. 

A bill of exchange is payable : 

1. At the place where, by its terms, it is made payable ; or, 

2. If it specify no place of payment, then at the place to which 
it is addressed ; or, 

3. If it is not addressed to any place, then at the place of resi- 
dence or business of the drawee, or wherever he may be found. If 
the drawee has no place of business, or if his place of business or 
residence cannot, with reasonable dihgence, be ascertained, pre- 
sentment for payment is excused, and the bill may be protested for 
non-payment. 

Presentment of a bill of exchange for acceptance must be made 
in the following manner, as nearly as by reasonable diligence it is 
practicable : 

1. The bill must be presented by the holder or his agent. 

2. It must be presented on a business day, and within reasona- 
ble hours. 

3. It must be presented to the drawee, or if he be absent 
from his place of residence or business, to some person having 
charge thereof, or employed therein ; and, 

4. The drawee, on such presentment, may postpone his ac- 
ceptance or refusal until the next day. If the drawee have no 
place of business, or if his place of business or residence cannot, 
with reasonable diligence, be ascertained, presentment for accept- 
ance is excused, and the bill may be protested for non-acceptance. 

When a bill of exchange is payable at a specified time after 
sight, the drawer and endorsers are exonerated if it is not pre- 
sented for acceptance within ten days after the time which would 
suffice, with ordinary diligence, to forward it for acceptance, unless 
presentment is excused. 

An acceptance of a bill must be made in writing, and may be 
made by the acceptor writing his name across the face of the bill, 
with or without other words. 

An unconditional promise, in writing, to accept a bill of ex- 
change, is a sufficient acceptance thereof, in favor of every person 
who upon the faith thereof has taken the bill for value or other 
good consideration. 

On the dishonor of a bill 'of exch-ange by the drawee, and in 



Chap. 39.] CALIFORNIA. 123 

case of a foreign bill, after it has been duly protested, it may be 
accepted or paid by any person, for the honor of any party 
thereto. 

If a bill of exchange, payable at sight or on demand, without in- 
terest, is not duly presented for payment within ten days after the 
time in which it could, with reasonable diligence, be transmitted to 
the proper place for presentment, the drawer and endorsers are ex- 
onerated unless such presentment is excused. 

The presentment of a bill of exchange for acceptance is excused 
if the drawee has not capacity to accept it. 

Delay in the presentment of a bill of exchange for acceptance 
is excused, when caused by circumstances over which the owner 
has no control. 

Presentment of a bill of exchange for acceptance or payment, 
and notice of its dishonor, are excused as to the drawer, if he for- 
bids the drawee to accept, or the acceptor to pay the bill ; or if, at 
the time of drawing, he had no reason to believe that the drawee 
would accept or pay the same. 

An inland bill of exchange is one drawn and payable within this 
State. All others are foreign. 

Notice of the dishonor of a foreign bill of exchange can be 
given only by notice of its protest, and the protest must be made 
by a notary public, if with reasonable diligence one can be ob- 
tained ; and if not, then by any reputable person, in the presence 
of two witnesses. Protest for non-acceptance must be made in the 
city or town in which the bill is presented for acceptance, and a 
protest for non-payment in the city or town in which it is presented 
for payment. 

One who pays a foreign bill for honor must declare, before pay- 
ment, in the presence of a person authorized to make protest, for 
whose honor he pays the same, in order to entitle him to reim- 
bursement. 

Damages on foreign bills of exchange are allowed as hereinafter 
prescribed, as a full compensation for interest accrued before notice 
of dishonor, re-exchange, expenses, and all other damages, in favor 
of holders for value only, upon bills of exchange drawn or nego- 
tiated within this State, and protested for non-acceptance or non- 
payment. 



124 CALIFORNIA. [Part 3. 

Damages are allowed as follows : 

1. If drawn upon anj person in this State, two dollars upon 
each one hundred dollars of the principal sum specified in the bill. 

2. If drawn upon any person out of this State, but in any other 
of the States west of the Rocky Mountains, five dollars upon each 
hundred dollars of the principal sum specified in the bill. 

3. If drawn upon any person in any of the United States, east 
of the Rocky Mountains, ten dollars upon each hundred dollars of 
the principal sum specified in the bill. 

4. If drawn upon any person in any place in a foreign country, 
fifteen dollars upon each hundred dollars of the principal sum 
specified in the bill. 

From the time of notice of dishonor and demand of payment, 
lawful interest must be allowed upon the aggregate amount of the 
principal sum specified in the bill, and the damages above mentioned. 

A promissory note is an instrument negotiable in form, whereby 
the signer promises to pay a specified sum of money. 

If a promissory note, payable on demand, or at sight, without 
interest, is not duly presented for payment within six months from 
its date, the indorsers thereof are exonerated, unless such present- 
ment is excused. 

Days of grace are not allowed on bills of exchange and promis- 
sory notes. 

A check is a bill of exchange drawn upon a bank or banker, or 
a person described as such upon the face thereof, and payable on 
demand without interest. 

A check is subject to all the provisions herein mentioned con- 
cerning bills of exchange, except that ; 

1. The drawer and indorsers are exonerated by delay in pres- 
entation only to the extent of the injury they suffer thereby. 

2. An indorsee, after its apparent maturity, but without actual 
notice of its dishonor, acquires a title equal to that of an indorsee 
before such period. 

A negotiable instrument must be made payable in money only, 
and without any condition not certain of fulfillment. 

A negotiable instrument may be with or without date, and with 
or without designation of the time or place of payment. 



Chap. 39.] CALIFORNIA. 125 

A negotiable instrument may contain a pledge of collateral se- 
curity, with authority to dispose thereof. 

'A negotiable instrument which does not specify a place of pay- 
ment is payable at the residence or place of business of the maker, 
or wherever he may be found. 

A negotiable instrument, made payable to the order of the 
maker, or of a fictitious person, if issued by the maker for a valid 
consideration, without indorsement, has the same effect against him 
and all other persons having notice of the facts as if payable to the 
bearer. 

An indorsement of a negotiable instrument may be general or 
special. 

A general indorsement is one by which no indorsee is named. 
A special indorsement specifies the indorsee. 

A negotiable instrument bearing a general indorsement cannot 
be afterwards specially indorsed ; but any lawful holder may turn 
a general indorsement into a special one, by writing above it a 
direction for payment to a particular person. 

A special indorsement may, by express words for that purpose, 
but not otherwise, be so made as to render the instrument not 
negotiable. 

An indorser may qualify his indorsement with the words, '' with- 
out recourse," or equivalent w^ords ; and upon such indorsement he 
is responsible only to the same extent as in the case of a transfer 
without indorsement. 

An indorsee in due course is one who, in good faith, in the 
ordinary course of business, and for value, before its apparent 
maturity or presumptive dishonor, and without knowledge of its 
actual dishonor, acquires a negotiable instrument duly indorsed to 
him, or indorsed generally, or payable to the bearer. 

An indorsee of a negotiable instrument, in due course, acquires 
an absolute title thereto, so that it is valid in his hands, notwith- 
standing any provision of law making it generally void or voidable, 
and notwithstanding any defect in the title of the person from whom 
he acquired it. 

The want of consideration for the undertaking of a maker, 
acceptor, or indorser of a negotiable instrument does not exonerate 



12.6 CALIFORNIA. [Part 3. 

him from liability thereon to an indorsee in good faith for a 
consideration. 

It is not necessary to make a demand of payment upon the 
principal debtor in a negotiable instrument in order to charge him ; 
but if the instrument is, by its terms, payable at a specified place, 
and he is able and willing to pay it there at maturity, such ability 
and willingness are equivalent to an offer of payment on his part. 

Presentment of a negotiable instrument for payment, when 
necessary, must be made as follows, as nearly as by reasonable 
diligence it is practicable : 

1. The instrument must be presented by the holder. 

2. The instrument must be presented to the principal debtor, if 
he can be found at the place where presentment should be made ; 
and if not, then it must be presented to some other person having 
charge thereof, or employed therein, if one can be found there. ^ 

3. An instrument which specifies a place for its payment must 
be presented there ; and if the place specified includes more than 
one house, then at the place of residence or business of the prin- 
cipal debtor, if it can be found therein. 

4. An instrument which does not specify a place for its pay- 
ment must be presented at the place of residence or business of 
the principal debtor, or wherever he may be found, at the option of 
the presenter ; and 

5. The instrument must be presented upon the day of its 
maturity, or if it be payable on demand, it may be presented on 
any day. It must be presented within reasonable hours ; and if it 
be payable at a banking house, within the usual banking hours of 
the vicinity ; but by the consent of the person to whom it should 
be presented, it may be presented at any hour of the day. 

6. If the principal debtor have no place of business, or if his 
place of business or residence cannot, with reasonable diligence, be 
ascertained, presentment for payment is excused. . 

The apparent maturity of a negotiable instrument, payable at a 
particular time, is the day on which, by its terms, it becomes due, 
or when that is a holiday, the next business day. 

A bill of exchange, payable at a certain time after sight, which 
is not accepted within ten days after its date, in addition to the 



Chap. 39.] CALIFORNIA. 127 

time which would suffice, with ordinary diligence, to forward it for 
acceptance, is presumed to have been dishonored. 

The apparent maturity of a bill of exchange, payable at sight or 
on demand, is : 

1. If it bears interest, one year after its date ; or, 

2. If it does not bear interest, ten days after its date, in addi- 
tion to the time which would suffice, with ordinary diligence, to for- 
ward it for acceptance. 

The apparent maturity of a promissory note, payable at sight or 
on demand, is : 

1. If it bears interest, one "year after its date ; or, 

2. If it does not bear interest, six months after its date. 
Wh^n a promissory note is payable at a certain time after sight 

or demand, such time is to be added to the period above mentioned. 

A negotiable instrument is dishonored when it is either not paid 
or not accepted, according to its tenor, on presentation for the pur- 
pose, or without presentation when that is excused. 

Notice of the dishonor of a negotiable instrument may be given : 

1. B}^ a holder thereof; or, 

2. By any party to the instrument who might be compelled to 
pay it to the holder, and who would, upon taking it up, have a 
right to reimbursement from the party to whom the notice is given. 

A notice of dishonor may be given in any form which describes 
the instrument with reasonable certainty, and substantially informs 
the party receiving it that the instrument has been dishonored. 

A notice of dishonor may be given : • 

1. By delivering it to the party to be charged, personally, at 
any place ; or, 

2. By delivering it to some person of discretion at the place of 
residence or business of such party, apparently acting for him ; or, 

3. By properly folding the notice, directing it to the party to be 
charged, at his place of residence, according to the best informa- 
tion that the person giving the notice can obtain, depositing it in 
the post office most conveniently accessible from the place where 
the presentment was made, and paying the postage thereon. 

In case of the death of a party to whom notice of dishonor should 
otherwise be given, the notice must be given to one of his personal 



128 CALIFORNIA. [Part 3. 

representatives ; or if there are none, then to any member of his 
family who resided with him at his death ; or if there is none, then 
it must be mailed to his last place of residence. 

A notice of dishonor given otherwise than by mail must be given 
on the day of dishonor, or on the next business day. When given 
by mail, it must be deposited in the post office in time for the first 
mail which closes after noon of the first business day succeeding 
the dishonor, and which leaves the place where the instrument was 
dishonored for the place to which the notice should be sent. 

Every party to a negotiable instrument, receiving notice of its 
dishonor, has the like time thereafter to give similar notice to prior 
parties as the original holder had after its dishonor. But this 
additional time is available only to the particular party 'entitled 
thereto. 

A notice of the dishonor of a negotiable instrument, if valid in 
favor of the party giving it, inures to the benefit of all other par- 
ties thereto whose right to give the like notice has not then been 
lost. 

Notice of dishonor is excused : 

1. When the party by whom it should be given cannot, with 
reasonable dihgence, ascertain either the place of residence or 
business of the party to be charged ; or, 

2. When there is no post office communication between the town 
of the party by whom the notice should be given, and the town in 
which the place of residence or business of the party to be charged 
is situated ; or, 

3. When the party to be charged is the same person who dis- 
honors the instrument ; or, 

4. When the notice is waived by the party entitled thereto. 
Presentment and notice are excused as to any party who informs 

the holder, within ten days before maturity, that the instrument 
will be dishonored. 

If before or after the maturity of an instrument an indorser has 
received full security for the amount thereof, or the maker has 
assigned all his estate to him as such security, presentment and 
notice to him are excused. 

Delay in presentment, or in giving notice of dishonor, is excused 



Chap. 40.] CALIFORNIA. 129 

when caused by circumstances which the party delaying could not 
have avoided by the exercise of reasonable care and diligence. 

A waiver of presentment waives notice of dishonor also ; but a 
waiver of notice does not waive presentment. 

A waiver of protest on any negotiable instrument, other than a 
foreign bill of exchange, waives presentment and notice. 



Chapter XL. 

PRINCIPAL AND AGENT. 

An agent is one who represents another, called the principal, in 
dealings with third persons. 

Any person having capacity to contract may appoint an agent, 
and any person may be an agent. 

An agent for a particular act or transaction is called a special 
agent. All others are general agents. 

An agent, unless specially forbidden by his principal to do so, 
can delegate his powers to another person in any of the following 
cases, and in no others : 

1. When the act to be done is purely mechanical. 

2.- When it is such as the agent cannot himself, and the sub- 
agent can, lawfully perform. 

3. When it is the usage of the place to delegate such powers. 

4. When such delegation is specially authorized by the principal. 
If an agent employs a sub-agent without authority, the former is 

a principal and the latter his agent, and the principal of the former 
has no connection with the latter. 

A sub-agent, lawfully appointed, represents the principal in like 
manner with the original agent ; and the original agent is not 
responsible to third persons for the acts of the sub-agent. 
9 



130 CALIFORNIA. [Part 3. 

An agent has authority to do everything necessary or proper, 
and usual, in the ordinary course of business, for eflfecting the 
purpose of his agency. 

An authority to sell personal property includes authority to 
warrant the title of the principal, and the quality and quantity of 
the property. 

A general agent to sell, who is intrusted by the principal with 
the possession of the thing sold, has authority to receive the price. 

A special agent to sell has authority to receive the price on 
delivery of the thing sold, but not afterwards. 



rART IV. 



STATE OF NEVADA 



PREPARED EXPRESSLY FOR THIS WORK BY BISHOP & SABIX, PIOCHE 



Chapter I. 

COURTS, JURISDICTION, AND TERMS OF COURTS. 
United States Courts. 

United States Circuit Court, Ninth Circuit ; composed of the 
Districts of CaUfornia, Nevada, and Oregon. Judges — Stephen J. 
Field, Associate Justice U. S. Suoreme Court; Lorenzo Sawyer, 
Circuit Judge, of San Francisco, California ; District Judge, E. W. 
Hillyer, of Carson City, Nevada. U. S. Attorney, C. S. Varian, 
of Carson City. Marshal, R. S. Clapp, Carson City. Clerk, R. 
M. Daggett, Virginia City. 

Terms of U. S. Circuit Court — At Carson City, second Mondays 
in March, June and October. 

Terms of U. S. District Court — At Carson City, first Mondays 
in February, May and October. 

(For the jurisdiction of the United States Courts, see Part II.) 



132 NEVADA. [Part 4. 



State Courts. 

One Supreme Court, and nine District Courts. 

The Supreme Court consist of three judges. The oldest in com- 
mission acts as chief justice. Judge — Thomas P. Hawlej, C. J.; 
Warner Earll and Wm. H. Beattj, Associate Justices. Clerk, 
Charles F. Bicknall. All reside at Carson City. 

Regular Terms — First Mondays of January, April, July and 
October. 

The Supreme Court shall have appellate jurisdiction in all cases 
in equity ;■ also in all cases at law in which is involved the title or 
right of possession to, or the possession of, real estate or mining 
claims, or the legality of any tax, impost, assessment, toll, or munic- 
ipal fine, or in which the demand, (exclusive of interest) or the 
value of the property in controversy, exceeds three hundred dol- 
lars ; also in all other civil cases not included in the general subdi- 
vision of law and equity, and also on questions of law alone, in all 
criminal cases in which the offense charged amounts to felony. The 
Court shall also have power to issue writs of mandamus, certiorari, 
prohibition, quo warranto and habeas corpus, and also all writs 
necessary or proper to the complete exercise of its appellate juris- 
diction'. Each of the justices shall have power to issue writs of 
habeas corpus to any part of the State, upon petition by, or on bo- 
half of, any person held in actual custody, and may make such 
writs returnable before himself or the Supreme Court, or before 
any District Court in the State, or before any judge of said Courts. 

District Courts. 

Jurisdiction. — The District Courts in the several judicial districts 
of this State shall have original jurisdiction in all cases in equity ; 
also in all cases at law which involve the title or the right of pos- 
session to, or the possession of, real property or mining claims, or 
the legality of any tax, impost, assessment, toll, or municipal fine, 
and in all other cases in which the demand, (exclusive of interest) 
or the value of the property in controversy, exceeds three hundred 
dollars; also in all cases relating to the estates of deceased 



Chap. 1.] 



NEVADA. 



133 



persons, and the persons and estates of minors and insane persons, 
and of the action of forcible entry and unlawful detainer ; and also 
in all criminal cases not otherwise provided for by law. They 
shall also have final appellate jurisdiction in cases arising in Jus- 
tices' Courts and such other inferior tribunals as may be established 
by law. The District Courts, and the judges thereof, shall have 
power to issue writs of mandamus, injunction, quo warranto, certio- 
rari, and all other writs proper and necessary to the complete exer- 
cise of their jurisdiction ; and also have power to issue writs of 
habeas corpus, on petition by, or on behalf of, any person held in 
custody in their respective districts. 

Times for Holding District Courts for 1876. 



COUNTY. 


COUNTY SEAT. 


DIST. 


WHEN HELD. 


Storey 

Oniisby 

Washoe 

Douglas 


Virginia City... 


1st ... 
2d.... 
2d.... 
2d.... 
■.id.... 
4th... 
5th... 
5th-.. 
.5th... 
6th... 
6th . . . 
7th... 
8th... 
9th... 


First Monday of January, March, June, and October. 

First Monday of February. June, and Noveii ber. 

First Monday of January, March. June, and October. 

First Monday of Mny and D(^cember. 

First Monday of Febi uary. May, Aiigust and November. 

First Monday of January. April. July, and October. 

First Monday of May and Decembt-r. 

First Monday of January, June, and October. 


Reno 

Grenoa . . 


Dayt(m 

Winnemucca. .. 

Stillwater 

Austin 


Humboldt,. . . 
Churchill .... 
Lander 


Nye 


Belmont 

Eureka 

Hamilton 

Pioche 


Eureka 

White Pine.. 
Lincoln 


First Monday of March, July, and November. 
First Mi)nday of Ja^naary, May, and September. 
First Monday of January. April, July, and October. 
First Monday of June and December. 
First Monday of February, June, and October. 






Elko 


Elko 





Justices' Courts. 



Justices of the peace have jurisdiction in all civil cases when the 
demand, (exclusive of interest) does not exceed three hundred dol- 
lars. Are always open. 



13J: NEVADA. [Part 4. 



Chapter II. 

TIME ALLOWED TO ANSWER—SERVICE BY PUBLI- 
CATION—PLACE OF TRIAL. 

Defendant has ten days to answer summons, exclusive of day of 
service, from date of service, when served within the county, 
twenty days when served in the district but in another county than 
the one where the action was commenced, and in all other cases 
forty days, when personal service is had. 

Service by publication may be had on defendant, upon filing of 
proper affidavit therefor. Summons to be published once a week 
for at least one month, against defendants residing in the States 
of California or Oregon, and the Territories of Utah and Wash- 
ington ; in all other cases the pubUcation of summons to be for 
not less than three months. 

Place of Trial. 

All actions pertaining to real estate, or to the recovery thereof, 
or any interest therein, must be commenced in the county wherein 
the real estate is situated. Transitory actions follow the person. 

Provisions in Justices' Courts. 

Defendant must be sued in the township in which he lives, unless 
he is served with summons in the county-seat, or has contracted to 
perform an obligation at a particular place ; in which case he may 
be sued in the township, city, or precinct where such obligation is 
to be performed, or in the township in which he resides. Service 
must be made from one to ten days before return day of sum- 
mons. 



Chap. 3.] NEVADA. 135 



Chapter III. 

• LIMITATION OF ACTIONS. 

Civil actions, except for recovery of real property, can only be 
commenced as follows : 

Within Five Years. — Upon a judgment or decree of any Court 
of the United States, or of any State or Territory within the Unit- 
ed States. 

Within Four Years. — Upon any contract, obligation, or liability 
founded upon an instrument in writing. 

Within Three Years. — Upon a liability created by statute, 
other than a penalty or forfeiture ; for trespass upon real property ; 
for taking, detaining, or injuring any goods or chattels ; including 
actions for the specific recovery of personal property ; for relief on 
the ground of fraud ; the cause of action not deemed to have ac- 
crued until discovery by party aggrieved of facts constituting a 
fraud. 

Within Two Years. — Upon a contract, obligation, or liability 
not founded upon a written instrument. 

Against a sheriff, coroner, or constable, upon the liability incur- 
ed by the doing of an act in his official capacity arid in virtue of 
his office, or an omission of an official- duty, including non-pay- 
ment of money collected upon execution. Upon statute for a pen- 
alty or forfeiture where the action is given to an individual, or to 
an individual and the State, except when the statute imposing it fixes 
a different limitation. For libel, slander, assault, battery, or false 
imprisonment. Upon statute for forfeiture or penalty to the State. 
Against a sheriff or other officer, for escape of a prisoner arrested or 
imprisoned on civil process. On open account for goods, wares or 
merchandise sold and delivered. For any article charged in a 
store account. In case of mutual accounts, the statute begins to 
run from date of last entry in account of either party. 

In all other cases, within four years after cause of action accrued. 



136 NEVADA. [Part 4. 

General Provisions. 

Limitation does not run against a party during absence from 
State, and if when a cause of action shall accrue against a party, 
he be out of the State, the action may be commenced within the 
time hmited after his return to the State. 

The statute does not run against a married woman^ or a person 
under the age of twenty-one years ; one insane, or imprisoned on 
criminal charge, where term of imprisonment does not extend to 
life. 

An action upon a judgment, contract, obligation, or liabihty, for 
the payment of money or damages obtained, made, executed, or 
issued out of the State, can only be commenced as follows : ' 

1. Within one year, when prior to passage of the act, (March 
5, 1867) more than two and less than five years have elapsed since 
the cause of action accrued. 

2. Within six months, when prior to the passage of the act, 
more than five years have elapsed since the cause of action ac- 
crued. 

3. Within two years, in all other cases, after the cause of action 
accrued ; a right of action shall be deemed to have accrued on a 
judgment at the time of its rendition. 

When the cause of action has arisen in any other State or Ter- 
ritory of the United States, or in a foreign country, and by the 
laws thereof an action cannot be maintained against a person by 
reason of the lapse of time, no action thereon shall be maintained 
against him in this State. 

No acknowledgment or new promise shall take the case out of the 
statute, except it be in writing, signed by the party to be charged. 

Actions for recovery of possession of real estate must be com- 
menced within five years, except actions for the recovery of mining 
ground, which must be commenced within two years, from time 
cause of action accrued. 



Chaps. 4, 5.] NEVADA. 137 

Chapter IV. 

ATTACHMENTS. 

Writ of attachment may be issued with summons, or at any time 
afterwards : 

1. In an action upon a contract for the direct payment of 
money, made, or by the terms thereof, payable in this State, which 
is not secured by mortgage, Uen, or pledge upon real or personal 
property, situated or being in the State ; if so secured, when such 
security has been rendered nugatory by the act of the defendant. 

2. In an action upon a contract against a defendant not residing 
in this State. 

Writ to be issued upon filing of an affidavit to be made by plaint- 
iff, or some one on his behalf, setting forth the statutory grounds 
for issuance of the writ. 

Plaintiff must o;ive bond to secure defendant ao;ainst damage 
arising from the issuance of the writ, in case the attachment is dis- 
missed, or the defendant recover in the action. 

Real and personal property, debts and credits, stocks or shares 
in any corporation, may be attached in the manner pointed out by 
the statute. 



Chapter V. 



ARREST IN CIVIL ACTIONS. 

The defendant may be arrested in the following cases : 
1. In an action for the recovery of money or damages, on a 
cause of action arising upon contract, express or implied, when the 



138 NEVADA. [Part 4. 

defendant is about to depart from the State with intent to defraud 
his creditors, or when the action is for Ubel or slander. 

2. In an action fi)r a fine or penalty, or for money or property 
embezzled, or fraudulently misapplied or converted to his own use 
by a pubhc officer, or an officer of a corporation, or an attorney, 
factor, broker, agent, or clerk, in the course of his employment as 
such, or by any other person in a fiduciary capacity, or for miscon- 
duct or neglect in office, or in professional employment, or for will- 
ful violation of duty. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property or any part thereof has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the sheriff. 

4. When the defendant has been guilty of a fraud in contract- 
ing the debt or incurring the obligation for which the action is 
brought, or in concealing or disposing of the property, for the tak- 
ing, detention, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

The order of arrest is only issued upon fiUng an affidavit and 
bond as required by statute — bond to be for a sum not less than 
four hundred dollars. 



Chapter VI. 



JUDGMENTS AND JUDGMENT LIENS. 

From time judgment is docketed it becomes a lien upon all real 
property of the judgment debtor, not exempted from execution in 
the county, owned by him at the time, or which he may afterwards 
acquire, until the lien expires. Lien of judgment continues for two 
years, unless the judgment be previously satisfied. Personal prop- 



Chap. 7.] NEVADA. 139 

erty, not exempt from execution, is only held for satisfaction of judg- 
ment after the levy of execution thereon. 



Chapter YII. 

EXECUTIONS, EXEMPTIONS, SALE, AND KEDEMP- 

TION. 

Execution may issue for the .enforcement of a judgment at any 
time within five years after the entry thereof, and may be issued to 
the sheriff of any county in the State in proper cases. 

Exemptions. 

The following property of the judgment debtor is exempt from 
execution : 

1. Chairs, tables, desks, and books to the value of flOO. 

2. Necessary household furniture, wearing apparel, beds, bed- 
ding, provisions, and firewood sufficient far one month. 

3. Farming utensils ; also two oxen or two horses, or two mules 
and their harnesses ; two cows, one cart or wagon ; and food for 
such oxen, horses, cows or mules, for one month ; also all seed 
grain or vegetables actually provided, reserved, or on hand for the 
purpose of planting or sawing, at any time within the ensuing six 
months, not exceeding in value f 100. 

4. The tools and implements of a mechanic or artisan necessary 
to carry on his trade ; the instruments and chests of a surgeon, 
physician, surveyor, and dentist, necessary to the exercise of their 
profession, with their scientific and professional libraries, and the 
libraries of an attorney or counsellor, and the libraries of min- 
isters of the gospel. 



140 NEVADA. [Part 4. 

5. The cabin or dwelling of a miner, not exceeding in value 
•f 500 ; also all tools and implements necessary for carrying on any 
mining operation not exceeding in value f 500 ; and two horses, 
mules, or oxen, with their harnesses, and food for the same for one 
month, when necessary to be used in such mining operations. 

6. Two oxen, two horses, or two mules, and their harness, and 
one cart or wagon, by the use of which a cartman, huckster, ped- 
dler, teamster, or other laborer, habitually earns his living ; and 
one horse, with vehicle and harness, or other equipments used by a 
physician or surgeon or minister of the gospel in making his pro- 
fessional visits, and food for such oxen, mules, or horses, for one 
month. 

7. One sewing machine, not exceeding in value $150, in actual 
use by the debtor or his family. 

8. All fire engines, hooks and ladders, and all apparatus and 
furniture belonging to any fire company or department. 

9. All arms, uniforms, and accoutrements required by law to be 
kept by any person. . 

10. All court houses, jails, public offices and buildings, lots, 
grounds, and personal property ; the fixtures, furniture, books, 
papers, and appurtenances belonging and pertaining to the court 
house, jail, and pubUc offices belonging to any county in this State ; 
and all cemeteries, public squares, parks and places, public build- 
ings, town halls, pubUc markets, buildings for the use of the fire 
departments and military organizations, and the lots and grounds 
thereto belonging and appertaining, owned or held by any town or 
incorporated city, or dedicated by such town or city to health, or- 
nament, or public use, or for the use of any fire or military com- 
pany organized under the laws of this State. 

11. None of the above articles or species of property are exempt 
from execution issued upon a judgment recovered for its price, or 
upon a mortgage thereon. 

12. The earnings of a judgment debtor arising from his personal 
services for the thirty days preceding the making of the order, (in 
supplemental proceedings) to the extent of fifty dollars, are exempt, 
when it shall be made to appear by the debtor's affidavit, or other- 



Chap. 8.] NEVADA. 141 

wise, that such earnings are necessary for the use of a family sup- 
ported wholly or partially by his labor. 

For homestead exemption, see " Homesteads." 

Sale. 

Real property may be sold upon twenty days' notice, given as 
required by law ; and personal property after five days' notice of 
the time and place of sale, as required by law. 

Redemption. 

Real estate sold upon execution or order of sale, upon mortgage 
or otherwise, may be redeemed by the judgment debtor, or his suc- 
cessors in interest in the whole or any part of the property ; or by 
a creditor having a lien by judgment or mortgage upon the prop- 
erty sold, or some share or part thereof subsequent to that upon 
which the property was sold, within six months from the date of 
sale. Real property sold for taxes is not subject to- redemption. 
Personal property, sold upon execution, is not subject to redemption. 



Chapter VIII. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

Upon return of execution unsatisfied, in whole or in part, issued 
upon any judgment, the defendant may be required to appear be- 
fore the Court, and answer under oath concerning his property. 



142 NEVADA. [Part 4. 



Chapter IX. 

SECURITY FOR COSTS. 

When plaintiff is a non-resident, or is a foreign corporation, 
security for costs maj be required. 



Chapter X. 

APPEALS. 



An appeal from a judgment rendered in a Justice's Court may be 
taken to the district court within thirty days after entry of judg- 
ment, upon filing a bond with two sufficient sureties for double 
the amount of judgment and costs, in case stay of execution is de- 
manded. 

An appeal may be taken from the District to the Supreme Court : 

1. From a final judgment in action or special proceeding com- 
menced in the Court in which the judgment is rendered, w^ithin one 
year after the rendition of judgment. 

2. From an order granting or refusing a new trial, from an order 
granting or dissolving an injunction, and from an order refusing to 
grant or dissolve an injunction, and from any special order made 
after the final judgment, within sixty days after the order is made 
and entered in the minutes of the Court. 

3. From an interlocutory judgment or order in cases of parti- 
tion which determines the rights of the several parties, and directs 
partition, sale, or division to be made, within sixty days after the 
rendition of the same. 



Chap. 11.] NEVADA. 143 

In all cases of appeal to the Supreme Court, a bond must be 
filed in the sum of $300 for payment of costs of appeal ; and in 
case a stay of execution is demanded, then an additional bond must 
be filed in a sum for double the amount of the judgment and costs. 
Bonds to be given by appellant, and to be executed by two or more 
sureties. 



Chapter XI. 

ESTATES OF DECEASED PERSONS. 

Claims against estates of deceased persons must be presented, 
proved, and allowed within ten months after the first publication of 
administrator's or executor's notice to creditors^ excepting claims of 
persons who are non-residents of the State, who have not had 
actual notice; they may present their claims at any time before 
distribution of estate. Claims may be verified by residents before 
any oflficer authorized to administer oaths within the State. An 
aflSdavit taken before a justice of the peace of any other county in 
the State except the one where the administrator or executor re- 
sides, must, to entitle it to be used or filed, contain a certificate of 
the clerk of the county where such justice resides, reciting the facts 
that said justice is duly commissioned and acting as such justice of 
the peace ; that the signature of such justice is genuine, and that 
full faith and credit are due to all his ofiicial acts. 

Affidavits to correctness of accounts and claims, when made out 
of the State of Nevada, must, to insure their reception, be verified 
before some judge of a Court having a seal, under the seal thereof, 
or a commissioner of deeds duly commissioned and qualified, of the 
State of Nevada, or before a notary public whose official character 



144 , NEVADA. [Part 4. 

is duly certified to bj the secretary of State or Territory in which 
he and the party making proof reside. 

Time in which the estate must be settled not Umited by statute ; 
it is subject to the order of the Court. 

District Courts have sole jurisdiction of all original proceedings 
in probate matters. 



Chapter XII. 

HOMESTEADS. 

The homestead of a judgment debtor, consisting of a quantity of 
land, together with th« dwelling house thereon and its appurte- 
nances, not exceeding in value five thousand dollars, to be selected 
by husband and wife, or either of them, or other head of the fam- 
ily, is exempt from forced sale on execution or other process from 
any Court. 

Homesteads are declared as follows : 

The selection to be made by either the husband or wife, or both 
of them, or other head of a family, declaring their intention in 
writing to claim the same as a homestead. The same to be duly 
acknowledged and recorded as conveyances aifecting real estate. 

Declaration of intention to claim and hold a homestead may be 
made at any time prior to sale on execution or other process, ex- 
cepting on sale of premises, on foreclosure of mortgage upon the 
premises executed by husband and wife ; or where the judgment 
is for the purchase price of the property claimed as a homestead. 
This exemption does not extend to any mechanic's, laborer's or 
vendor's lien upon the premises. 

The homestead may be abandoned by a declaration in writing, 
signed and acknowledged by husband and wife, and recorded in 



Chap. 13.] NEVADA. 145 

the office of the county recorder, in the same manner as the dec- 
laration to claim the same is required to be acknowledged and re- 
corded. On the death of husband or wife, the homestead and other 
property exempt from sale .on execution is required to be set apart 
by the Court for the benefit of the surviving husband or wife, and 
his or her legitimate children. 

In cases where homestead property is appraised at a sum ex- 
ceeding five thousand dollars, the same may be sold, and the sum 
realized on sale in excess of five thousand dollars and costs will 
pass to judgment creditor. 



Chapter XIII. 

OF WITNESSES AND DEPOSITIONS. 

Parties to the action are not excluded from being witnesses upon 
the ground of interest, except — 

1. That no party to an action or proceeding is allowed to testify 
therein, when the opposite party is the representative of a deceased 
person, when the facts to be proved transpired before the death of 
such deceased person. 

2. Persons convicted of felony, unless pardoned, or the judg- 
ment is reversed on appeal, cannot be witnesses. 

3. Attorneys or counsellors cannot, except by consent of their 
client, be examined as to any confidential communications made to 
them in the course of their pro^ssional employment, and the like 
rule applies to physicians, surgeons, clergymen or priests, with 
respect to confidential communications made to them in their pro- 
fessional capacity. 

4. Husband or wife cannot be witnesses for or against each 
other, except in actions brought by one against the other. 

10 



146 NEVADA. . [Part 4. 

5. Public officers cannot be examined as witnesses in reference 
to communications made to them in official confidence, when the 
public interest would, by such disclosures, be injured. 

6. Laws relative to the attestation of instruments required to be 
attested are reserved from the operation of the statute allowing 
parties in interest to testify. 

Negroes can testify in all cases where whites are permitted to 
act as witnesses. 

The testimony of a witness in this State may be taken in an 
action at any time after the service of the summons, or the appear- 
ance of the defendant ; and in a special proceeding, after a question 
of fact has arisen therein, in the following cases : 

1. When the witness is a party to the action or proceeding, or a 
person for whose immediate benefit the action or proceeding is 
prosecuted or defended. 

2. When the witness resides out of the county in which his tes- 
timony is to be used. 

3. When the witness is about to leave the county where the ac- 
tion is to be tried, and will probably continue absent when the tes- 
timony is required. 

4. When the witness, otherwise liable to attend the trial, is nev- 
ertheless too infirm to attend ; or resides within the county, but 
more than fifty miles from the place of trial. 

The deposition may be taken before any judge, or clerk of a 
Court, or any justice of the peace or notary public in this State, on 
serving upon the adverse party previous notice of the time and 
place of the examination, together with a copy of an affidavit show- 
ing that the case is one mentioned as above stated. Such notice 
shall be at least five days, and in addition one day for every twen- 
ty-five miles of the distance of the place of examination from the 
residence of the person upon whom notice is served, unless, for 
cause shown, a judge, by order, prescribe a shorter time. Either 
party may attend such examination, and put such questions, direct 
and cross, as may be proper. 

The deposition, when completed and corrected, shall be signed 
by the witness and sealed and directed to the clerk of the Court 
'in which the action is pending, or to such person as the parties, in 



Chap. 13.] NEVADA. 147 

writing, may agree upon, and either delivered by the officer taking 
the same to the clerk or such person, or transmitted through the 
mail, or by some safe private opportunity ; and such deposition may 
be used by either party upon the trial against any party giving or 
receiving such notice, subject to all legal objections. If the par- 
ties attend at the examination, no objection to the form of an inter- 
rogatory shall be made at the trial, unless the same was stated at 
the time of the examination. 

If the deposition to be taken be by the reason of the absence or in- 
tended absence from the county of the witness, or because he is too 
infirm to- attend, proof, by affidavit or oral testimony, shall be made 
at the trial that the witness continues absent or infirm, to the best 
of deponent's knowledge or belief. 

Depositions thus taken may be also read, in case of the death of 
the witness. 

When a deposition has been once taken, it may be read in any 
stage of the same action or proceeding by either party, and shall 
then be deemed the evidence of the party reading it. 

Depositions Taken Out of the State. 

The testimony of a witness out of. the State may be taken by 
deposition in an action at any time after the service of the sum- 
mons, or the appearance of the defendant ; and in a sfecial pro- 
ceeding, at any time after a question of fact has arisen therein. 

The deposition of a witness out of the State shallbe taken upon 
commission issued from the Court, under the seal of the Court, up- 
on an order of the judge or Court, on the application of either par- 
ty, upon five days' previous notice to the other. It shall be issued 
to a person agreed upon by the parties, or if they do not agree, to 
any judge or justice of the peace selected by the officer granting 
the commission, or to a commissioner appointed by the governor of 
this State to take affidavits and* depositions in other States or Ter- 
ritories. 

Such proper interrogatories, direct and cross, as the respective 
parties may prepare, 'to be settled, if the parties disagree as to their 
form, by the judge or officer granting the order for the commission, 



148 NEVADA. [Part 4. 

at a day fixed in the order, or at the time of granting the order for 
commission, may be annexed to the commission ; or, when the par- 
ties agree to that mode, the examination maj be without written in- 
terrogatories. 

The commission shall authorize the commissioner to administer 
an oath to the witness, and to take his deposition in answer to the 
interrogatories, or when the examination is to be without interroga-- 
tories in respect to the questions in dispute, and to certify the depo- 
sition to the Court, in a sealed envelope directed to the clerk or 
other person desi^^ned or agreed upon, and forward to him by 
mail, or other usual channel of conveyance. 



Chapter XIV, 



JUDICIAL RECORDS, HOW PROVED. 

A judicial record of this State, or the United States, or any Ter- 
ritory, may be proved by the production of the original, or a copy 
thereof, certified by the clerk or other person having the legal cus- 
tody thereof, under the seal of the Court, to be a 'true copy of such 
record. 

The records and judicial proceedings of the Courte of any other 
State of the United States, or of any Territory, may be proved or 
admitted in the Courts of this State, by the attestation of the clerk 
and seal of the Court annexed, if there be a seal, together with a 
certificate of the judge, chief justice, or presiding magistrate, as the 
case may be, that the said attestation is in due form. 

A judicial record of a foreign country may be proved by the 
production of a copy thereof, certified by th-e clerk, with the seal 
of the Court annexed, if there be a seal, or by the legal keeper of 
the record, with the seal of his office annexed, if there be a seal, 



Chap. 15. 1 NEVADA. 149 

to be a true copy of such record, together with a certificate of a 
judge of the Court that the person making the certificate is the 
clerk of the Court, or the legal keeper of the record, and in either 
case that the signature is genuine, and the certificate in due form ; 
and, also, together with the certificate of the minister or embassa- 
dor of the United States, or of a consul of the United States, 
in such foreign country, that there is such a Court, specifying 
generally the nature of its jurisdiction, and verifying the signa- 
ture of the clerk and judge, or other legal keeper of the record. 

Second. A copy of the judicial record of a foreign country shall 
also be admissible in evidence upon proof: 

1. That the copy offered has been compared by the witness with 
the original, and is an exact transcript of the whole of it. 

■ 2. That such original was in the custody of the clerk of the Court 
or other legal keeper of the same ; and, 

3. That the copy is duly attested by a seal, which is proved to 
be the seal of the Court where the record remains, if it be the 
record of a Court ; or if there be no such seal, or if it be not the 
record of a Court, by the signature of the legal keeper of the 
original. 



Chapter 'XV. 

ACKNOWLEDGMENTS. 

The proof or acknowledgment of every conveyance affecting 
any real estate shall be taken by some one of the following offic- 
ers : 

1. If acknowledged or proved within this State, by some judge 
or clerk of a Court having a seal, or some notary public, or justice 
of the peace : Provided^ when the acknowledgment is taken be- 
fore a justice of the peace in any other county than that in which 



150 NEVADA. [Part 4. 

the real estate is situated, the same shall be accompanied with the 
certificate of the clerk of the District Court of such county, as to 
the official character of the justice taking the proof or acknowledg- 
ment, and the authenticity of his signature. 

2. If acknowledged or proved without this State, but within the 
United States, shall be taken by some one of the following offi- 
cers : 

A judge or clerk of a Court having a seal, or some notary 
public or justice of the peace, or by any commissioner appointed 
by the Governor of this State for that purpose : Provided, that 
when the acknowledgement is taken by a justice of the peace, the 
same shall be accompanied by the certificate of the clerk of a 
Court of record of the county, having a seal, as to the official 
character of the justice and the authenticity of his signature. 

3. If acknowledged or proved without the United States, by 
some judge or clerk of any Court of any State, Kingdom or Em- 
pire having a seal, or by any notary pubhc therein, or by any 
minister, commissioner, or consul of the United States, appointed 
to reside therein. 



Chapter XVI. 



AFFIDAVITS, BEFORE WHOM TO BE TAKEN. 



An affidavit to be used before any Court, judge, or officer of this 
State may be taken before any judge or clerk of any Court, or 
any justice of the peace, or notary public in this State. 

An affidavit taken in another State, or in a Territory of the 
United States, to be used in this State, shall be taken before a 
commissioner appointed by the Governor of this State to take affi- 
davits and depositions in such other State or Territory, or before 
any judge of a Court of record having a seal. 



Chap. 17.] • NEVADA. 151 

An affidavit taken in a foreign country, to be used in this State, 
shall be taken before an embassador, minister, or consul of the 
United States, or before any judge of a Court of record having a 
seal, in such foreign country. 

When an affidavit is taken before a judge of a Court in another 
State, or in a Territory of the United States, or in a foreign coun- 
try, the genuineness of the signature of the judge, the existence 
of Court, and the fact that such judge is a member thereof, shall 
be certified by the clerk of the Court, under the seal thereof. 



Chapter XYII. 

LIMITED PARTNERSHIPS 

May be formed for the transaction of mercantile,- mechanical, 
mining, or manufacturing business by two or more persons, as 
provided for by special statute. But nothing contained in the act 
shall authorize such partnerships for the purpose of banking or 
insurance. 

In partnerships of this character there shall be one or more 
members of the firm to be known 'as general partners, and they 
are individually liable for the debts of the firm. The special part- 
ners are liable for the firm debts to the extent of their interest in 
the firm property or assets ; also to the extent of any sums of 
money by them received, withdrawn, or divided, with interest 
thereon from the time they were so withdrawn from the firm. 

The business of the partnership shall be conducted under a firm 
name, in which the names of the general partners only shall be in- 
serted, and the general partners only shall transact the business. 
If the name of any special partner shall be used in said firm with 
his consent or privity, or if he shall personally make any contract 



152 NEVADA. [Part 4. 

respecting the concerns of the partnership with any person except 
the general partners, he shall be deemed and treated as a general 
partner. ^ • 



Chapter XVIII. 

MARRIED WOMEN 

May become sole traders upon petition, and by order of District 
Court. 

When they are sole traders, they become liable for debts in- 
curred in the conduct of the business authorized to be carried on 
by them as such. 



Chapter XIX. 



CORPORATIONS 



May be formed for all purposes under general statute. 
Stockholders are not individually liable for any debt of the 
corporation. 



Chaps. 20, 21.] Nevada. 153 



Chapter XX. 

CHATTEL MORTGAGES. 

No chattel mortgage upon any personal property shall be valid for 
any purpose, except possession of the property mortgaged be given 
to and continuously retained by the mortgagee, except that grow- 
ing crops may be mortgaged by the execution, acknowledgment 
and record of a mortgage, with delivery of possession. 



Chapter XXI. 

INTEREST and USURY. 

Where there is no express contract in writing, fixing a different 
rate of interest, interest shall be allowed at the rate of ten per 
cent, per annum for all moneys after they become due upon any 
bond, bill, or promissory note, or other instrument in writing, on 
any judgment recovered before any Court in this State, for money 
lent, money due on settlement of accounts from the day on which 
the balance is ascertained, and for money received for the use of 
another. 

Parties may agree in writing for the payment of any rate of in- 
terest whatever upon money due, or to become due on any con- 
tract. Judgments rendered upon contracts shall conform thereto, 
and bear the interest agreed upon by the parties, which shall be 
specified in the judgment : Provided^ only the amount of the origi- 
nal claim or demand shall draw interest after judgment. 



154 NEVADA. [Part 4. 



Chapter XXII. 

PROMISSORY NOTES AND BILLS OF EXCHANGE. 

All notes in writing made and signed by any person, whereby he 
shall promise to pay to any other person, or to his order, or to the 
order of any other person, or to the bearer, any sum of money 
therein mentioned, shall be due and payable as therein expressed, 
and shall have the same effect, and be negotiable in like manner, 
as inland 'bills of exchano;e, accordino; to the custom of merchants. 

Days of grace are allowed upon bills and promissory notes, where 
not otherwise expressed. 

Damages for non-acceptance of bills of exchange upon the usuaL 
protest are as follows, when drawn or negotiated in this State : 

If such bills shall have been drawn upon any person op persons in 
any of the United States east of the Rocky Mountains, fifteen dol- 
lars upon the hundred upon the principal sum specified in such bill. 

If such bill shall have been drawn upon any person or persons in 
any part or place in Europe, or in any foreign country, twenty dol- ' 
lars upon the hundred upon the principal Sum specified in such bill. 



Chapter XXIII. 



MORTGAGES. 



A mortgage of real property, whatever its terms, shall not be 
deemed a conveyance, so as to enable the OAvner of the mortgage 
to recover possession of the real property without a foreclosure and 



Paet Y. 



STATE OF OREGON 



PREPARED EXPKEPPLY FOR THIS WORK BY DOLPH, BROKOUGH, 
DOLPH & SIMON, PORTLAND, OREGON. 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The judicial power of the State is vested in a Supreme Court, 
Circuit Courts, and County Courts, which are Courts of record. 

Justices of the peace are invested with hmited judicial powers, 
and Municipal Courts may be created to administer the regula- 
tions of incorporated towns and cities. 

The Supreme Court consists of five justices, who are elected by 
the electors in each district, and who hold their offices for six years. 

The Supreme Court has jurisdiction only to revise the final de- 
cisions of the Circuit Courts. 

The Circuit Courts are held at least twice in each year, in each 
county organized for judicial purposes, by one of the justices of the 
Supreme Court. All judicial power, authority, and jurisdiction not 
vested exclusively in some other Court belongs to the Circuit 
Courts, and they have appellate jurisdiction and supervisory con- 



156 OREGON. [Part 5. 

trol over the County Courts, and all other inferior Courts, officers 
and tribunals. 

County Courts have jurisdiction, but not exclusive, of actions at 
law, and all proceedings therein and connected therewith, when the 
claim or subject of the controversy does not exceed the value of five 
hundred dollars. 

Justices' Courts have jurisdiction, but not exclusive, of the fol- 
lowino; actions : 

1. For the recovery of money or damages only, where the 
amount claimed does not exceed -f 250. 

2. For the recovery of specific personal property, when the value 
of the property claimed and the damages for the detention do not 
exceed |250. 

3. For the recovery of a penalty or forfeiture, not exceeding 1250. 

4. To give judgment without action upon the confession of the 
defendant. 

The jurisdiction does not, however, extend to an action in which 
the title to real property shall come in question, or to an action for 
false imprisonment, libel, slander, malicious prosecution, criminal 
conversation, seduction, or upon a promise to marry. 



Chapter II. 



TERMS OF COURT, WHEN AND WHERE HELD. 

The following are the times and places' of holding Courts, both 
Federal and State, in the several counties and districts of the State : 

United States Circuit Court, District of Oregon. 

Regular terms held at Portland, on the second Monday of April, 
August and November. 



Chap. 2.] 



OREGON. 



15: 



Judges, Hon. Stephen J. Field, Associate Justice of the Supreme 
Court, and Hon. Lorenzo Sawyer, Circuit Judge. Clerk, Ralph 
Wilcox. Marshal, D. J. Malarkej. 

United States District Court, District of Oregon. 

Regular terms held at Portland, on the first Monday of March, 
July and November. 

Judge, Hon. Matthew P. Deady. Clerk, Ralph Wilcox. Mar- 
shal, D. J. Malarkey. U. S. District Attorney, Rufus Mallory. 
Register in Bankruptcy, H. H. Northup. 

Supreme Court of Oregon. • 

Regular terms held at Salem, on the second Monday in Decem- 
ber of each year, and special terms held at such other times as the 
Court appoints. 

Circuit Courts of the State of Oregon. 



COUNTIES. 



TniES OF HOLDING. 



Bafeer 

Benton 

Clackamas . , 

Clatsop 

Columbia . . . 

Coos 

Cnrry 

Doutilas 

Grant 

Jackson 

Josephine.. . 

Lake 

Lane 

Linn 

]\J[irion 

Multnomah. 

Polk 

I'matiUa 

Union 

Wasco 

Washinsrton. 
Yamhill 



First Monday of October and third Monday of May. 

Third Monday of November and second Monday of ApriL 

Fourth Monday of April and fourth Monday of September. 

Second Tuesday of August and fourth Tuesday of January. 

Second Monday of ApriL 

Fourth Monday of May and second Monday of September. 

First M mday of June. 

Third Monday of October and second»Monday of May. 

Third M niday of September and first Monday of June. 

Second Monday of February, June and November. 

Fourth M >nday of April and fourth Monday of October. 

Fourth Monday of June and November. 

Third Monday of April and first Monday in November. 

S cond M mday in March and fourth M )nday in October. 

Fourth ?Ionday of Feb., second Monday of June, and third Monday of Oct. 

Second M mday of February, Jane, and October. 

second Monday of May and first Monday of December. 

Fourth Mondav of October and last Monday of April. 

Third M onday^^of October and first Monday of May. 

Second Monday of November and third Monday of June. 

Fourth M nday of May and first Monday of October. 

Fourth Monday of March and first Monday of October. 



Terms of the County Courts. 
In the counties of Josephine, Curry, Coos, Columbia, Clatsop, 



158 OREGON. [Part 5. 

Tillamook and Umatilla — on the first Monday of January, April, 
July and September. 

In the counties of Grant, Baker, Lane and Wasco — on the first 
Monday of January, March, May, July, September and Novem- 
ber. 

In the county of Lake — on the first Monday of every alternate 
month. 

In the countyof Union — on the second Monday of May and the 
first Monday of January, March, July, September and Novem- 
ber. 

In the counties of Jackson, Douglas, Linn, Benton, Polk, Mar- 
ion, Yamhill, Clackamas, Washington and Multnomah — on the first- 
Monda/of each month. 



Chapter III. 

COMMENCEMENT OF SUITS. 

Actions at law are commenced by filing a complaint with the 
clerk of the Court. 

At any time after the action is commenced, the plaintiff may 
cause a summons to be served on the defendant. 

The summons must contain the name of the Court in which the 
complaint is filed, the names of the parties to the action, and the 
title thereof ; it must be subscribed by the plaintiff or his attorney, 
and directed to the defendant, and require him to appear and an- 
swer the complaint, or the plaintiff will take judgment for a sum 
specified therein. 

If the defendant be served within the county in which the action 
is commenced, he must appear and answer the complaint within 
ten days from the date of the service ; but if served in any other 



Chaps. 4, 5.] OREGON. 159' 

county in the State, he must appear and answer the complaint 
■within twenty days from the date of service. 



Chapter IV. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the recovery of real property, or an estate, or inter- 
est therein, or for injury thereto, and for the recovery of any per- 
sonal property distrained for any cause, shall be commenced and 
tried in the county in which the subject of the action, or some part 
thereof, is situated. 

In all other cases the action shall be commenced and tried in 
the county in which the defendants or either of them reside, or may 
be found at the commencement of the action. If none of the par- 
ties reside in this State, the same may be tried in any county 
which the plaintiff may designate in his complaint. 



Chapter V. 

LIMITATION OF ACTIONS. 

The periods prescribed for the commencement of actions are as 
follows : 

Within Twenty/ Yeai's : 

Actions for the recovery of real property, or for the recovery of 
the possession thereof. 



160 OREGON. [Part 5. 

Within Ten Years: 
Actions upon a judgment or decree of any Court of the United 
States, or of any State or Territory within the United States. 
Actions upon sealed instruments. 

Within Six Years : 

An action upon a contract or hability express or implied, ex- 
cepting those already mentioned. 

An action upon a liability created by statute, other than a penalty 
or forfeiture. 

An action for waste or trespass upon real property. 

An action for taking, detaining or injuring personal property, 
including an action for the specific recovery thereof. 

Within Three Years : • 

An action against a sheriff, constable or coroner, upon a liability 
incurred by the doing of an act in his official capacity, or by the" 
omission of an official duty ; but this does not apply to an action for 
an escape. 

An action upon a statute for a penalty or forfeiture. 

Within Two Years: 
An action for libel, slander, assault, battery, or false imprison- 
ment; for criminal conversation, or for an injury to the person or 
rights of another not arising on contract. 
'An action upon a statute for a forfeiture or penalty to the State. 

Within One Year : 
An action against a sheriff or other officer for the escape of a 
prisoner arrested or imprisoned on civil process. 



An action for any cause not hereinbefore provided for shall be 
commenced within ten years after the cause of action accrued. 



Chaps. 6, 7.] OREGON. 161 



Chapter VI. 

ATTACHMENTS. 

In an action for the recovery of money or damages, the plaintiff, 
at any time after the commencement of the action, and before judg- 
ment, may have the property of the defendant attached, by fiUng 
with the clerk of the Court an undertaking with one or more sure- 
ties equal to the amount for which the plaintiff demands judgment, 
and not less than |100 ; and the plaintiff, or some one' in his behalf,^ 
making and filing an affidavit that the defendant is either a foreign,- 
corporation or a non-resident of the State, or has departed there- 
from with intent to delay or defraud his creditors, or to avoid the 
service of a summons, or keeps himself concealed therein with like 
intent, or has removed or is about to remove his property from the 
State Avith intent to delay or defraud his creditors, or has assigned, 
secreted, or disposed of any of his property, or is about to do so, 
with intent to delay or defraud his creditors, or that the debt was 
fraudulently contracted. 



Chapter VII. 

ARRESTS IN CIVIL 'ACTIONS. 

The defendant may be arrested in the following cases : 
In an action for the recovery of money or damages on a cause 
of action arising out of contract, when the defendant is not a resi- 
dent of the State, or is about to remove therefrom-; or when the 
action is for an injury to person or character, or for injuring or 
• 11 



162 OREGON. [Part 5. 

wrongfully taking, detaining, or converting property. In an action 
for a fine or penalty, or on a promise to marry, or for money re- 
ceived, or property embezzled or fraudulently misapplied or con- 
verted to his own use by a public officer, or an attorney, officer, or 
agent of a corporation, factor, agent or broker, or other person- in 
a fiduciary capacity. In an action to recover the possession of any 
personal property unjustly detained, when the property or any por- 
tion thereof has been concealed, removed, or disposed of. 

When the defendant has been guilty of a fraud in contracting 
the debt or incurring the obligation for which the action is brought. 

When the defendant has removed or disposed of his property, or 
is about to do so, with intent to defraud his creditors. 

No female can be arrested in any action, except for an injury to 
person, character, or property. 



Chapter VIII, 



JUDGMENTS AND JUDGMENT LIENS. 

A judgment, when entered, becomes a lien upon the real estate 
owned by the defendant in the county at the time of the entry, 
and such as he may subsequently acquire. The lien continues for 
-ten years. 



Chap. 9.] OREGON. 163 



Chapter IX. 

EXECUTIONS, EXEMPTIONS, SALE, AND REDEMP- 
TION. 

Th'e party in whose favor a judgment is given which requires 
the payment of money, the delivery of real or personal property, 
or eiiher of them, may, at any time after the entry thereof, have a 
writ of execution issued for its enforcement. 

There are three kinds of execution : one against the property of 
the judgment debtor, another against his person, and the third for 
the delivery of re.al or personal property. 

In the Circuit and County Courts executions are returnable in 
sixty days, and in Justices' Courts in thirty days. 

In the Circuit and County Courts there is no stay of execution, 
except pending an appeal ; in Justices' Courts execution may be 
stayed for thirty days upon filing boncf. 

The following personal property is exempt from sale under an 
execution : 

Books, pictures, and musical instruments, to the value of $15 ; 
wearing apparel to the vake of $100, and if a householder, to the 
v^lue of $50 for each member of the family ; tools, implements, ap- 
paratus, team, vehicle, harness, or library, when necessary in the 
occupation or profession of a judgment debtor, to the amount of 
$400 ; if the judgment debtor be a householder, ten sheep with 
one year's fleece, two cows, five swine, household goods, furniture, 
and utensils, to the value of $300. No article of property is ex- 
empt from execution issued upon a judgment for the purchase 
price. * 

Upon a sale of real property, when the estate is less than a 
leasehold of two years' unexpired term, the sale is absolute. In all 
other cases such property is subject to redemption. 

The judgment debtor, or his successor in interest, may redeem 
such property within sixty days from the date of the order con- 
firming the sale, by paying the amount of the purchase monev, 



164 OREGON. [Part 5. 

with interest at the rate of two per cent, per month from the time 
of sale, together with the amount of taxes the purchaser may have 
paid thereon. 

A creditor having a lien by judgment, decree or mortgage, on 
any portion of the property subsequent in time to that on which the 
property was sold, may also redeem. 



Chapter X. 



PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

After the issuing of an execution against property, and upon 
proof by the affidavit of the plaintiff, in the writ or otherwise, to the 
satisfaction of the Court or judge thereof, that the judgment debtor 
has property liable to execiition which he refuses to apply towards 
the satisfaction of the judgment, such Court or judge may by an 
order require the judgment debtor to appear and answer under 
oath concerning the same. If it appear from such examination 
that the judgment debtor has property liable to execution, the 
Court or judge shall make an order requiring the judgment debtor 
to apply the same in satisfaction of the judgment. Disi)bedience to 
any such order may be punished as for a contempt. 



Chapter XI. 



SECUKITY FOR COSTS. 



Security for costs can only be required in Justices' Courts. If 
the plaintiff is a non-resident of the county, the justice may require 
him to give an undertaking ^-ith one or more sureties for the costs 



Chap. 12.] OREGON. 165 

and disbursements of the action before issuing the summons, and if 
at any time before the commencement of the trial the defendant 
apply therefor, the justice must require such plaintiff to give such 
undertaking. Upon application of defendant, and in the discretion 
of the justice, the plaintiff, if a resident of the county, may be re- 
quired to give an undertaking for costs. The undertaking may be 
in the following form : '^ I, A B, or We, A B and C D, undertake 
to pay E F, the defendant in this action, all costs and disburse- 
ments that may be adjudged to him in this action." 

The sureties must possess the qualifications of bail upon arrest, 
and if required by the defendant, must justify in a sum not less 
than 150. 



Chapter XII 



APPEALS. 

Any party to a judgment or decree, other than a decree or 
judgment for want of an answer, or by confession, may appeal 
therefrom. 

An appeal to the Supreme Court shall be taken by serving and 
filing a notice of appeal within six months from the entry of the 
judgment or decree appealed from, or to the Circuit Court within 
thirty days after such entry, and not otherwise. 

Appeals from the Circuit Courts are taken to the Supreme 
Court, and from County Courts and Justices' Courts to the Circuit 
Court of the county. 

Upon an appeal from the Circuit or County Court, the appellant 
must file an undertaking, with one or more sureties, to the effect 
that the appellant will pay all damages, costs and disbursements 
which may be awarded against him on the appeal; and if the 
iudgment or decree appealed from be for the recovery of money or 



166 OREGON. [Part 5. 

personal property, or the value thereof, to obtain a stay of proceed- 
ings the undertaking must further provide, that if the judgment or 
decree appealed from be affirmed, the appellant will satisfy it so 
far as affirmed. 

Upon an appeal from Justice's Court, the undertaking is to the 
effect that the appellant will pay all costs and disbursements that 
may be awarded against him on the appeal, and that h'e will satisfy 
any judgment that may be given against him in the appellate court 
on the appeal. 



Chapter XIII. 



ESTATES OF DECEASED PERSONS. 

Every executor or administrator must, immediately after his ap- 
pointment, publish a notice thereof in some newspaper pubhshed in 
the county, for four successive weeks. Such notice must require 
all persons having claims against the estate to present them to the 
administrator or executor, within six months from the date of such 
notice, with the proper vouchers. A claim not presented within 
six months is not barred, but it cannot be paid until the claims pre- 
sented within that period have been satisfied. A claim not due 
or contingent must, nevertheless, be presented as any other claim. 
Until administration has been completed, a claim against the estate 
may be presented, allowed and paid out of any assets not other- 
wise appropriated or liable. 

Every claim must be verified by the affidavit of the claimant, or 
some one on his behalf, who has personal knowledge of the facts, 
to the eSect that the amount claimed is justly due, that no pay- 
ments have been made thereon except as stated, and that there is 
no just counter-claim to the same. 

There is no specified time in which estates are required to be 
settled. 



Chap. 14.] OREGON. 167 

Chapter XIV. 

DESCENT OF REAL PROPERTY. 

When any person dies, seized of any real property, or any right 
thereto, or any interest therein, not having, lawfully devised the 
same, such real property descends, subject to his debts, as follows : 

1. In. equal shares to his children and to the issue of any de- 
ceased child by right of representation ; and if there be no child of 
the intestate living at the time of his death, such real property de- 
scends to all his other lineal descendants ; and if all such descend- 
ants are in the same degree of kindred to the intestate, they take 
such real property equally ; or otherwise, they take according to the 
right of representation. 

2. If the intestate leaves no lineal descendants, such property de- 
scends to his wife ; and if he leaves no wife, it descends to his 
father. 

3. If the intestate leaves no lineal descendants, wife nor father, 
such real property descends in equal shares to his brothers and 
sisters, and to the issue of any deceased brother or sister by right 
of representation ; but if the intestate leaves a mother also, she 
takes an equal share with such brothers and sisters. 

4. If the intestate leaves no lineal .descendants, wife, father, 
brother nor sister living, at his death, such real property descends 
to his mother, to the exclusion of the issue of his deceased brothers 
or sisters. 

5. If the' intestate leaves no lineal descendants, wife, father, 
mother, brother nor sister, such real property descends to his next 
of kin in equal degree, excepting that when there are two or more 
collateral kindred in equal degree, but claiming through dijferent 
ancestors, those who ^claim through the nearest ancestor are pre- 
ferred to those claiming through a more remote ancestor. 

6. If the intestate leaves one or more children, and the issue of 
one or more deceased children, and any of such surviving children 
shall die under age, without having been married, all such real 



168 OREGON. [Part 5. 

property that came to such deceased child by inheritance from such 
intestate, descends in equal shares to the other children of the in- 
testate, and to the issue of any other children of such intestate 
who shall have died, by right of representation ; but if all the 
other children of such intestate are also dead, and any of them shall 
have left issue, such real property so inherited by such deceased 
child descends to all the issue of such other children of the intes- 
tate in equal shares, if they are in the same degree of kindred to 
such deceased child ; otherwise, they take by right of representation. 
7. If the intestate leaves no lineal descendants or kindred, such 
real property escheats to the State of Oregon. 



Chapter XV 



DESCENT OF PERSONAL PROPERTY. 

When any person dies possessed of any personal property, not 
havkig lawfully bequeathed the same, such personal property is 
applied and distributed as follows : 

1. If the intestate leaves a widow, she is allowed all her articles 
of apparel and ornaments, according to the degree and estate of 
the intestate, and such property and provisions for the use and 
support of herself and minor children as shall be allowed and 
ordered. 

2. The personal property of the intestate remaining after such 
allowance is applied to the payment of the debts of the intestate, 
and the charges and expenses of administration. 

3. The residue, if any, of the personal property is distributed 
among the persons who would be entitled to the real property, 
except as otherwise provided. 

4. If the intestate leaves a husband, such husband is entitled to 
the whole of the personal property. 



Chaps. 16, 17.] OREGON. 169 

5. If the intestate leaves a widow and issue, such widow is en- 
titled to receive one-half of such personal property ; but if there 
be a widow and no issue, she is entitled to the whole of such per- 
sonal property. 

6. If there be no husband, widow or kindred, the whole escheats 
to the State. 



Chapter XVI. 

HOMESTEADS AND DOWER. 

Homesteads. 
There is no homestead law in this State. 

Dower. 

The widow of every deceased person is entitled to dower, or the 
use during her natural life of one-third part of all the lands of 
which her husband was seized of an estate of inheritance at any 
time during the marriage, unless she is lawfully barred thereof. 



Chapter XVII. 

DEPOSITIONS. 



The deposition of a witness out of the State may be taken upon 
commission issued from the Court, or without commission before a 
commissioner appointed by the governor of this State to take dep- 



170 OREGON. [Part 5. 

ositions in other States or countries. The commission may be 
issued by the clerk of the Court, or the justice in a cause pending 
in Justice's Court, on the appHcation of either party upon five days' 
previous notice to the other. It is issued to a person agreed upon 
by the parties, or if they do not agree, to a judge, justice of the 
peace, notary pubUc, or clerk of a Court selected by the officer 
issuing it. Such interrogatories, direct and cross, as the parties 
may prepare may be annexed to the commission. 

The following form may be used : 

In the Court of the State of Oregon for County. 

A B, Plaintiff, 
vs. 

C D, Defendant. 



J 



Deposition of E F, a witness on behalf of the 

in the above entitled action, taken before me, a commissioner 
named in the attached commission, and a (notary public) in and for 

, —county. State of '■ on the- ■ 

day of 187 at my office at the city of 



in said county and State, who being first duly sworn in an- 
swer to the direct and cross interrogatories attached to said com- 
mission in their order, testified as follows : 

1. To the first direct interrogatory he answers, etc. 

When completed, the deposition should be read to the witness, 
and then subscribed by him. 

The following form of certificate should be added to the deposi- 
tion : 
State of 



County of- 

I, a (notary public) in and for said county and 

'State, and commissioner, before whom the foregoing deposition was 
taken, do hereby certify that the deposition of said witness, E F, 

was taken before me, at my office in the city of in 

said county and State, on the day of 18 

between the hours of o'clock a.m., and- o'clock — M. 

of said day, and the same was endorsed by me ; that before pro- 
ceeding to the examination, the witness was duly sworn to tell the 
truth, the whole truth, and nothing but the truth ; that when com- 



Chaps. 18, 19.] OREGON. 171 

pleted, the deposition was carefully read over by me to said wit- 
ness, and then by him subscribed. 

In witness whereof, I have hereunto set my hand and official 

seal, this day of 187 

[seal.] 

Notary Public, etc. 
and Commissioner. 
• Endorse upon the envelope the title of the Court and cause, and 

the words " deposition of " and forward by mail to the 

officer issuing the commission. 



Chapter XVIII. 

JUDICIAL RECORD. 

The judicial record of a sister State is proved by the production 
of a copy thereof, certified by the clerk or other person having 
the legal custody of the record, with the seal of the Court affixed 
thereto, if there be a seal, together with the certificate of the chief 
judge, or presiding magistrate, that the certificate is in due form, 
and made by the clerk or other person having the legal custody of 
the original. 



Chapter XIX. 

ACKNOWLEDGMENTS. 

Deeds may be acknowledged within this State before any judge 
of the Supreme Court, county judge, justice of the peace, notary 
public, or clerk of a Court. No acknowledgment of any convey- 



172 OREGON. . [Part 5. 

ance having been executed shall be taken by any officer, unless he 
shall know or have satisfactory evidence that the person making 
such acknowledgment is the individual described in and who exe- 
cuted such conveyance. 

When a married woman, residing in this State, shall join with 
her husband in a deed of conveyance of real estate situated within 
this State, the acknowledgment of the wife shall be taken sep- 
arately and apart from her husband, and she shall acknowledge 
that she executed such deed freely and without fear or. compulsion 
from any one. If any deed shall be executed in any other State, 
Territory or District of the United States, such deed may be exe- 
cuted and acknowledged according to the laws of such State, Ter- 
ritory or District, or before any commissioner appointed by the 
governor of this State for such purpose ; and unless the acknowledg- 
ment be taken before such commissioner, it must be certified by^ 
the clerk or other proper certifying officer of a Court of record of 
the county or district within which such acknowledgment was taken, 
under the seal of his office, that the person whose name is sub- 
scribed to the certificate of acknowledgment was, at the date there- 
of, such officer as he is therein represented to be, and that he be- 
lieves the signature of such person subscribed thereto to be genuine, 
and that the deed is executed and acknowledged according to the 
laws of such State, Territory or District. 



Chapter XX. 



LIMITED PARTNERSHIPS. 



Limited partnerships for the transaction of mercantile, mechan- 
ical and manufacturing business may be formed in this State. 
The persons forming such partnership make and severally subscribe 



Chap. 21.] OREGON. 173 

and acknoAvledge a certificate in duplicate, which contains the name 
assumed by the partnership, the names and respective places of 
residence of all the general and special partners, the amount of 
capital. which each special partner contributes, the general nature 
of the business to be transacted, and the time when the partnership 
is to commence and terminate ; one copy of such certificate is filed 
with the clerk of the county in which the principal place of busi- 
ness of the partnership is to be. A copy of the same is required 
to be published for four weeks in some weekly newspaper pubhshed 
in the county. The business must be conducted under a name in 
which .the names of the general partners only shall be inserted, 
without the addition of the word company, or any other general 
term. 

Special partners are not personally Uable for any debts of the 
partnership. 

During the continuance of any such partnership no part of the 
capital stock can be withdrawn, nor any division of interests or 
profits made, so as to reduce such capital stock below the sum 
stated in the certificate. 



Chapter XXI. 

MARRIED WOMEN. 



The constitution of the State provides that the property and 
pecuniary rights of every married woman at the time of marriage, 
or afterwards acquired by gift, devise or inheritance, shall not be 
subject to the debts or contracts of the husband, and laws shall be 
passed providing for the registration of personal property : which 
has been* done. The property, both real and personal, acquired by 
any married woman during coverture, is free from and not liable 
for the debts, liabilities or contracts of her husband. 



174 OREGON. [Part 5. 



Chapter XXII. 

CORPORATIONS. 

Corporations are only formed under general laws, and cannot be 
created by special laws. 

The stockholders of all corporations and joint stock companies 
are liable for the indebtedness of such corporations to the amount 
of their stock subscribed and unpaid, and no more. 

No bank, banking company or moneyed institution can be creat- 
ed under the laws of this State ; nor can any bank, company or 
institution exist in the State with the privilege of making, issuing, 
or putting in circulation any bill, check, certificate, promissory- 
note or other paper, or the paper of any bank, company or person, 
to circulate as money. 



Chapter XXIII. 

CHATTEL MORTGAGES. 

Chattel mortgages are valid against third parties when the prop- 
erty is retained in the possession of the mortgagor, provided the 
mortgage or a copy thereof is filed in the office of the county clerk. 
Such mortgage, however, ceases to be valid as against creditors 
and subsequent purchasers, or mortgagors m good faith, after ihe 
expiration of one year from the filing of the same, unless within 
thirty days preceding the expiration of the year an affidavit, setting 
forth the interest which the mortgagee has in the property by 



Chap. 24.] OREGON. 175 

virtue of such mortgage, is made and annexed to the instrument or 
copy on file. The effect of such affidavit does not continue beyond 
one year, Avhen a similar affidavit must be made. 



•Chapter XXIV. 

INTEREST AND USURY. 

Ten per cent, per annum is the legal rate of interest ; but on con- 
tracts, interest at the rate of one per cent, per month may be 
charged by express agreement of the parties. 

Usury entails the forfeiture of the principal sum, without interest, 
to the school fund of the county in which the suit is brought. 



Part YI. 



UTAH TERRITORY 



PREPARED EXPRESSLY FOR THIS WORK BY LEWIS BURNES, 
SALT LAKE CITY. 



Chapter I. 

THE COURTS AND THEIR JURISDICTION. 

The Supreme Court of the Territory has general appellate juris- 
diction only. 

There are three United States District Courts in the Territory, 
with unlimited jurisdiction in all chancery and law actions. 

The Probate Courts, 

One in each county : Their jurisdiction is limited to strictly pro- 
bate business, except that they may try divorce cases where both 
parties agree upon that forum ; removable, however, at the pleasure 
of either party, to the District Court. The judges have the right 
to enter town sites, and preside over the board of selectmen ; in 
other words, the County Court. 

12 



178 UTAH. [Parte. 



Justices' Courts 

Have jarisdiction in all actions where the amount involved is less 
than three hundred dollars, except in cases involving titles to real 
estate. 



Chapter II. 

THE TERMS OF COURTS AND PLACES OF HOLDING 

SAME. 

The Supreme Court sits the first Monday of January, and the 
second Monday of June, of each year, at Salt Lake City. 

The District Courts sit at Salt Lake City, third district ; Provo, 
second district ; Beaver City, first district. The times are fixed 
by the Governor at pleasure, and often change to suit convenience 
or absence of the judges, and now the assignment is only tem- 
porary. 

The Probate Courts and Justices' Courts are always open for 
the transaction of business ; the former at their respective county 
court houses, and the latter in their respective precincts. 



Chapter III. 

COMMENCEMENTS OF SUITS AND TIME ALLOWED 
DEFENDANTS TO PLEAD. 

Suits may be commenced at any time. Ten days after service 
are allowed the defendants to plead, answer, demur, or file motions 
in cases in the District Courts and Supreme Court. 



Chaps. 4, 5.] UTAH. 1T9 

In Justices' Courts, defendants may be required to answer within 
two days after service, and not longer than ten days after service. 



Chapter IV. 

LIMITATIONS OF ACTIONS. 

Actions for the recovery of real estate can only be brought with- 
in seven years after the plaintiff's having been lawfully seized and 
possessed of the premises by himself, grantor, ancestor, or prede- 
cessor. 

Actions for the recovery of money on notes, bonds, or judgments 
recovered in a foreign State must be brought within four years 
after the cause of action accrued ; and on accounts, within two 
years. 



Chapter V. 



ATTACHMENTS 



Can only issue upon the filing of an affidavit on behalf of the 
plaintiff, showing the existence of a debt upon contract, specifying 
the nature and amount thereof, as near as may be, over and above 
all legal set-offs or counter-claims ; that the same has not been se- 
cured by any mortgage, lien, or pledge upon real or personal 
estate within the Territory, or if so secured, that such security has 



180 UTAH. [Part 6. 

been rendered nugatory by the act of the defendant ; that the 
defendant is not residing in this Territory, or that the defendant has 
departed the Territory or county where the action is brought, or 
that the defendant stands in defiance of an officer, or conceals him- 
self so that process cannot be served upon him, or that he is dis- 
posing of his property with the intent to defraud his creditors ; that 
the debt is an actual bona fide existing; demand due and owino; from 
the defendant to the plaintiff, and that the action is not sought or 
prosecuted to hinder, delay, or defraud any creditor of the de- 
fendant. 

There must also be executed and filed an undertaking, with two 
sufficient sureties, in a sum not less than f 200, nor exceeding the 
amount claimed by the plaintiff, conditioned, that if the defendant 
recover judgment in the action, the plaintiff will pay all costs that 
may be awarded to the defendant, not exceeding the amount speci- 
fied in the undertaking. 



Chapter YI. 

ARRESTS IN CIVIL ACTIONS 

Are issued upon filing an undertaking and affidavit, the same in 
effect as those required in attachment cases, except that in addi- 
tion to the liability of sureties in attachment cases for costs, in 
cases of arrest they are Hable for any damage which the defendant 
may sustain by reason of the arrest, not exceeding the sum 
specified in the undertaking, and the undertaking must be in a 
sum not less than $300. In either case, the sureties must an- 
nex an affidavit to the undertaking ; that he h a resident and 
householder, or freeholder within the Territory, and worth double 
the sum specified in the undertaking, over and above all his debts 
and liabilities, exclusive of property exempt from execution. 



Chap. 7.] UTAH. . 181 

The affidavit in cases of arrest differs from attachment affidavits 
only in this, that the arrest may be made in any action for a fine, 
or for money or property embezzled, or fraudulently misapplied, or 
converted to his own use by a public officer, or an officer of a cor- 
poration, or an attorney, factor, or broker, agent or clerk, in the 
course of his employment, or by any person in a fiduciary capacity 
for misconduct or neglect in office, or in a professional employment, 
or for a willful violation of dntj or in an action to recover the posses- 
sion of personal property, unjustl}^ detained ; when the property, 
or any part thereof, has been concealed, removed or disposed of, so 
that it cannot be found or taken by the Territorial marshal, his 
deputy, or the sheriff or his deputy ; or where the defendant has 
been guilty of fraud in contracting the debtor incurring the obliga- 
tion for which the action is brought, or is concealing or disposing 
of the property for the taking, detention or conversion of which 
the action is brought ; or when the defendant has removed or dis- 
posed of his property or is about to do so, with the intent to de- 
fraud his creditors. 



Chapter VII. 



JUDGMENTS AND JUDGMENT LIENS. 

A judgment is collectable by execution, which may be issued 
any time after judgment, within three years after its rendition, 
and is alien upon the real estate of the defendant within the coun- 
ty where it is rendered, from its rendition ; executions may be 
issued to other counties, but the judgment constitutes a lien there, 
only from the time of filing a transcript of the judgment for record 
in the office of the county recorder of the county to which it is sent. 



182 UTAH. [Part 6. 



Chapter VIII. 

EXECUTIONS, EXEMPTIONS, SALES, AND REDEMP- 
TION. 

Property, real or personal, may be sold on twenty days' notice, 
under execution, but the execution may issue returnable in not less 
then ten days nor more than ninety days, and the execution may 
require the officer to satisfy the judgment in the particular kind of 
money ordered in the judgment. 

The following property is exempt from execution : 

1. Chairs, tables, desks and books, to the value of one hundred 
dollars belonging to the judgment debtor. 

2. Necessary household, table and kitchen furniture belonging 
to the judgment debtor, including stoves, not to exceed one stove 
for every five persons of the family. Stove pipe and stove furni- 
ture, wearing apparel, one bedstead, one bed, and the necessary 
bedding for every two persons in the family, and provisions and 
fuel for the family sufficient for sixty days. 

3. The farming utensils or implements of husbandry of the 
judgment debtor. Also, two oxen or two horses, or two mules and 
their harness ; one cow and calf for every five persons in the family ; 
one cart or wagon, and food for such oxen, horses, cows, or mules, for 
sixty days ; also all seed grain, or vegetables, actually provided, re- 
served, or on hand, for the purpose of planting or sowing at any 
time within the ensuing six months, not exceeding in value one 
hundred dollars, 

4. The tools, tool chest, and implements of a mechanic or 
artisan, necessary to carry on his trade. The instruments and 
chests of a surgeon, physician, surveyor, or dentist, necessary to 
the exercise of their professions, with their scientific and profes- 
sional libraries, and the law library of an attorney or counsellor, 
and the libraries of ministers of the gospel. 

5. The tent or cabin of a miner, including a table, camp»stools, 
a bed and bedding, and necessary tools used in mining, not exceed- 



Chap. 8.] UTAH. 183 

ing the value of four hundred dollars, with provisions necessary to 
his support for thirty days. 

6. Two oxen or two horses or two mules, and their harness, 
and one cart and wagon, by the use of which a cartman, teamster, 
or other laborer habitually earns his living, and food for such oxen, 
horses, or mules for sixty days ; and a horse, harness, and vehicle 
used by a physician, surgeon, or minister of the gospel, in making 
his professional visits. 

7. One sewing machine not to exceed in value $100.00, in 
actual use by the debtor or his family. If the debtor be head of a 
family, then there shall be a further exemption of five head of sheep 
and the wool therefrom for every person in his family, two hogs 
and three pigs under three months old, and the necessary food for 
all such animals for sixty days. All flax raised by the debtor and 
the manufactures therefrom, and all cloth manufactured in the 
family of the debtor for their own use ; all spinning wheels and 
looms and other instruments of domestic labor kept for family use. 
The earnings of such debtor for his personal service, or those of his 
family, at any time within sixty days next preceding the levy. 

8. All fire engines, hooks and ladders, with the carts, trucks 
and carriages, hose, buckets, implements and apparatus. All fur- 
niture and uniforms of any fire company or department now exist- 
ing, or which may be under the laws of this territory hereafter 
organized. 

9. All arms, ammunitions, uniforms, and accoutrements, re- 
quired by law to be kept by a person. . 

10. All court-houses, jails, public offices and buildings, school 
houses, and houses of public worship, lots, grounds and personal 
property appertaining thereto. The fixtures, furniture, books, 
papers, and appurtenances belonging and appertaining to the 
court-house, jail, and public offices belonging to any county, or for 
the use of schools or houses of public worship ; and all cemeteries, 
public squares, parks and places, town halls, markets for the use 
of fire departments and military organizations, and the lots and 
grounds thereto belonging, or held by any town or incorporated 
city, or dedicated to such town or city to health, ornament, or 
public use, to the use of any fire or military company now existing 
or hereafter organized. 



184 UTAH. [Parte. 

11. For liomestead exemption, see " Hom3stead." 

Redemption 

Of real property may be made by the defendant, or any creditor 
subsequent to plaintiff's lien, any time within six months from the 
day of sale. 



Chapter IX. 



PROCEEDINGS IN AID OF EXECUTIONS. 

On the return by a sheriff or marshal of an execution " unsatis- 
fied," the judgment creditor upon affidavit or otherwise showing to 
the satisfaction of the Court, or of the judge thereof, that the judg- 
ment debtor has property which he unjustly refuses to apply 
towards the satisfaction of the judgment, may apply, and the 
Court or judge may, by an order, require the judgment debtor to 
appear at a specified time and place before such judge, or a referee 
appointed by him, to answer under oath concerning the same ; and 
;such proceedings may thereupon be had for the application of the 
property of the judgment debtor towards the satisfaction of the 
judgment, as are provided upon the return of an execution ; that 
is, to require the appearance of witnesses, and hear the same, and 
make orders in relation thereto. And on proof by affidavit, or 
otherwise, that any person or corporation has property of such judg- 
ment debtor, or is indebted to him in an amount exceeding |50, the 
judge may by order require such person, or corporation, or any 
officer or member thereof, to appear at a specified time and place 
before him, or a referee appointed by him, and answer concerning 
the same. 

The judge or referee may order any property of the judgment 



Chap. 10.] UTAH. 185 

debtor not exempt from execution in the hands of such debtor, or 
any other person, or due to the judgment debtor, to be appHed 
towards the satisfaction of the judgment. 

If it appear that a person or corporation, alleged to have prop- 
erty of the judgment debtor or indebted to him, claims an in- 
terest in the property adverse to him, or denies the debt, the 
Court or judge may authorize, by an order made to that effect, 
the judgment creditor to institute an action against such person or 
corporation for the recovery of such interest or debt ; and the 
Court or judge may, by order, forbid a transfer or other disposition 
of such interest or debt, until an action can be commenced and 
prosecuted to judgment. Such order may be modified or vacated 
by the judge granting the same, or the Court in which the action 
is brought, at any time, on such terms as may be just. 



Chapter X. 

SECURITY FOR COSTS. 

It is made the duty of the clerk of the District Court, in all civil 
actions, to require the party commencing the suit to pay in ad- 
vance or secure by bond with security the payment of the probable 
amount of the costs of the action, provided that the said costs shall 
at the conclusion of the trial be paid by the party against whom 
said costs are adjudged by the Court. 



186 UTAH. [Part &. 



Chapter XI. 



APPEALS 

From Justices' Courts to the proper District Court may be taken 
any time within thirty days after rendition of judgment, except 
where the judgment is for an amount less than 120, by fiUng a 
notice of such appeal, and serving a copy on the opposite party ; 
and by filing with the justice, within five days after fihng the notice 
of appeal, an undertaking w^ith two good sureties, who shall justify 
under oath. 

Appeals from the District Court 

May be taken to the Supreme Court from any final judgment or 
order in a civil action, except when expressly made final by the act, 
any time within one year after the rendition of judgment. From 
any order granting or refusing a new trial, or from an order grant- 
ing or dissolving an injunction, or from an order refusing to grant or 
dissolve an injunction, and from any special order made after the 
final judgment, within sixty days after the order is made and en- 
tered upon the minutes of the Court ; or from any interlocutory 
judgment or order in cases of partition, sale or division, to be taken 
within sixty days after the rendition of the same. 

The appeal is taken by filing with the clerk of the Court with 
whom the judgment or order appealed from is entered, a notice stat- 
ing the appeal from the same, or some specific part thereof, and 
serving a copy of the notice on the adverse party or his attorney. 
To render the appeal eSectual for any purpose, in any case, a writ- 
ten undertaking shall be executed on the part of the appellant, by 
at least two sureties, to the effect that the appellant will pay all 
damages and costs which may be awarded against him on the ap- 
peal ; or a sum not exceeding $100. shall be deposited with the 
clerk with whom the judgment or order was entered, to abide the 
event of the appeal ; such undertaking shall be filed, or such de- 



Chap. 12.] UTAH. 187 

posit made with the clerk, within at least five days after the notice 
of appeal is filed. 

An appeal from a judgment or order for the payment of money 
shall not stay the execution of the judgment or order, unless a 
written undertaking is executed on the part of the appellant, by 
two or more sureties, stating their places of residence and occupa- 
tion, to the effect that they are bound in double the amount named 
in the judgment or order appealed from ; and should the judgment 
or order appealed from, or any part thereof, be affirmed, the 
appellant shall pay the amount directed to be paid by the 
judgment or order, or the part thereof which shall be affirmed, 
and all damages and costs which may be awarded against the ap- 
pellant, and in the kind of money in which the Court to which it is 
appealed shall order the payment thereof. 

The sureties shall file affidavit as to their worth, over all just 
debts and liabihties, exclusive of property exempt from execution. 

When the appeal shall be thus perfected, it shall stay all pro- 
ceedings upon the judgment, until the action of the appellate Court 
shall be had. The appellee may object to the sureties, as to their 
sufficiency, and if the objection be well taken, and the appellant, 
upon five days' notice, fail to give additional security, the appeal 
shall be regarded as if not taken. 

Upon trial in the appellate Court, the successful party is entitled 
to have the judgment remitted to the Court from which the appeal 
was taken, for execution. 



Chapter XII. 

ESTATES OF DECEASED PERSONS. 

Claims against deceased estates must be made within two years 
after administration begins. 

Satisfactory proof of the amount due must be made to the Pro- 



188 UTAH. [Part 6. 

bate Court ; this may be made after expiration of two years, pro- 
vided notice of the claim be given within the two years. 

The executor or administrator of the estate has as long to make 
final settlement in, as the Probate Court will permit, which is 
usually, as long as he can show any unsettled business of the 
estate. * 

The widow or other members of the family are entitled to the 
homestead, and such further allowance as the Probate Court may 
deem proper for the maintenance of the widow. 

The largest discretion is given the Court in making orders re- 
specting the estate. 



Chapter XIII, 



HOMESTEADS. 

There shall be allowed homestead exemption, to be selected by 
the debtor, consisting of lands and appurtenances thereon not ex- 
ceeding in value one thousand dollars for the judgment debtor, and 
the further sum of two hundred and fifty dollars for each member 
of the family, (which, in some instances, amount to thirty or forty, 
including wives and children) . If the premises amount in value to 
more than the homestead exemption, it may be ordered sold or par- 
titioned, and in case of sale, the excess over the exemption valua- 
tion is subject to execution ; and in case of partition, the part divid- 
ed off from the homestead is subject to sale on execution, the valu- 
ation to be made by persons chosen by the debtor and the officers 
having the execution. 



Chap. 14.] UTAH. 189 



Chapter XIV. 

DEPOSITIONS 

May be taken in any action at any time after service of summons, 
or the appearance of the defendant, and in a special proceeding 
after a question of fact has arisen therein, in the following cases : 

1. When the witness is a party to the action or proceeding, or a 
person for w^hose immediate benefit the action or proceeding is 
prosecuted or defended. 

2. When the witness resides out of the county in which his tes- 
timony is to be used. 

3. When the witness is about to leave the county where the 
action is to be tried, and will probably continue absent when his 
testimony is required. 

4. When the witness, otherwise liable to attend the trial, is too 
infirm to attend, or resides within the county but more than fifty 
miles from the place of trial. 

Either party may have a deposition of a witness taken before 
a notary public, justice of the peace, judge, or clerk of a court, by 
serving notice on the adverse party of the time and place of ex- 
amination, together with a copy of the affidavit showing the case to 
be one of the kind above mentioned. The notice must be served 
at least five days, and one additional day for every twenty-five 
miles of distance of the place of examination from the residence of 
the person served, unless for cause the Court prescribes a shorter 
time. 

The witness may be cross-examined, and after having his testi- 
mony carefully examined and read to him, he shall sign it ; and 
the bfficer taking the deposition shall certify it up to the proper 
Court, enclosed in an envelope, and addressed to the clerk of the 
Court in which the action is pending, or to such person as the par- 
ties may agree upon, or transmit through the mail ; and such de- 
position may be used by either party on the trial. No objections 
to the form of an interrogatory at the trial will be heard, unless 



190 UTAH. [Parte. 

made at the time of taking, if the party making the objection is in 
attendance at the taking. 

If a deposition be taken on account of the absence from the 
county, or intended absence, or because the witness is too infirm to 
attend, before being used proof must be made by affidavit or oral 
testimony that the witness' disabiHty continues, to the best of affi- 
ant's knowledge. The deposition may be read in case of his death. 

Depositions once taken may be read in any Stage of the cause 
by either party, and shall be deemed evidence of the party read- 
ing them. 

If a deposition be taken out of the Territory, it must be upon 
a commission issued by the Court, under its seal, upon five days' 
notice to the adverse party of the application for a commission, and 
shall be issued to a person to be agreed upon between the parties ; 
and, in case of disagreement, then to such person as the Court 
may appoint, or to a commissioner appointed by the Governor of 
this Territory to take affidavits and depositions in the States or 
Territories. 

Such interrogatories, direct and cross, as the parties prepare, or, 
in case of disagreement, such as the Court shall settle, shall be an- 
nexed to the commission. The cause shall not be continued on ac- 
count of the non-return of the commission and deposition, unless 
upon evidence .satisfactory to the Court, that the testimony of the 
witness is necessary, and that proper diligence has been used to ob- 
tain it. 

The statute also provides for the taking of testimony, and for its 
perpetuation, upon application to the Court, showing that the appli- 
cant expects to be a party to an action in this Territory, and giv- 
ing the names of persons whom he expects will be adverse parties ; 
that the proof of some facts is necessary to perfect the title to 
property in which he is interested, or to establish a marriage, de- 
scent, heirship, or any other matter which it may hereafter become 
material to establish ; though no suit may at the time be anticipated. 
The names of the witnesses and the general outline of the facts ex- 
pected to be proven, to be stated. Affidavits or other proofs filed 
with the testimony shall hQ prima facie evidence of the facts stated 
therein. No particular form of the certificate of the officer taking 
the deposition is prescribed by the statute. 



Chap. 15.] UTAH. 191 

Chapter XV. 

JUDICIAL RECORDS, HOW PROVEN. 

A judicial record of this Territory, or of the United States, or of 
any State or Territory of the United States, may be admitted in the 
Courts of this Territory by the attestation of the clerk, with the 
seal of the Court annexed, together with the certificate of the 
judge, chief justice, or presiding magistrate, as the case may be, 
that said attestation is in due form. 

A judicial record of a foreign country may be proved by the 
production of a copy thereof, certified by the clerk, with the seal 
of the Court annexed, if there be a clerk and seal, to be a true 
copy of such record, together with a certificate of the judge of the 
Court that the person making the certificate is the clerk of the 
Court, or the legal keeper of the records ; and in either case, that 
the signature is genuine, and the certificate in due form ; together 
with the certificate of the minister or embassador of the United 
States, or of a consul of the United States, in such foreign country, 
that there is such a Court, specifying generally its jurisdiction, and 
verifying the signature of the judge and clerk, or other legal keeper 
of the record. 

A copy of the judicial record of a foreign country shall also be 
admissible in evidence, upon proof, first, that the copy offered has 
been compared by the witness with the original, and is an exact 
transcript of the whole of it ; and that sueh original was in the cus- 
tody of the clerk of the Court, or other legal keeper of the same ; 
and that the copy is duly attested by the seal which is proved to be 
the seal of the Court where the record remains, if it be the record 
of a Court ; or if there be no such seal, or if it be not a record of a 
Court, by the signature of the legal keeper of the original. 



192 UTAH. [Parte. 



Chapter XVI. 



ACKNOWLEDGMENTS. 

Deeds, mortgages, powers of attorney, or other instruments 
affecting the title to real estate, must be acknowledged or proved 
before they can legally be placed upon record. 

The following is the form of the acknowledgment certificate : 

State or Territory of- . ^ 

ss. 



■County, 



On this day of A. D. 187 , personally appeared be- 
fore me , a notary pubhc in and for said county, ~ 

who is personally known to me to be the person described in and 
who executed the foregoing instrument, who acknowledged to me 
that he executed the same freely and voluntarily, and for the uses 
and purposes therein mentioned. In witness whereof, I have here- 
unto set my hand and official seal, on the day and year last above 

written. , 

[seal.] Notary Public. 

The following officers are authorized to take acknowledgments, 
and certify to them : 

If acknowledged or proven within this Territory, by some judge 
or clerk of a Court having a seal, or some notary public, or county 
recorder, or by a justice of the peace of the county where the con- 
veyance is executed, and to be recorded. 

If acknowledged or proved out of this Territory, and within any 
State or Territory in the United States, by some judge or clerk of 
any Court of the United States, or of any State or Territory having 
a seal, or by a notary public, or by a commissioner appointed by 
the Governor of this Territory for that purpose. 

If acknowledged or proved without the United States, by some 
judge or clerk of any Court of any State, Kingdom, or Empire 
having a seal, any notary pubhc therein, or any minister, com- 



Chap. 17.] UTAH. 193 

missioner, or consul of the United States appointed to reside there- 
in. Such officers may take and certify such proofs or acknowledg- 
ments by their respective deputies, in the names of their principals. 

When granted by a judge or clerk, the certificate shall be 
under the seal of his Court. 

When granted by an officer who has an official seal, it shall be 
under such seal. 

By a justice of the peace, under his hand. 



Chapter XVII. 

PARTNERSHIPS. 

The statute provides how partners may be summoned, and how 
judgments against partners may be rendered, but is thus brief 
and pointed. 

When two or more persons, associated in any business, transact 
such business in a common name, whether it comprises the names 
of such persons or not, the associates may be sued by such common 
name, the summons in such cases being served on one or more 
of the associates, but the judgment in such cases shall bind only 
the joint property of the associates. The private property of per- 
sons engaged in copartnership shall be held liable for the debts 
of the firm, only when the partnersliip property shall prove insuffi- 
cient to pay them.. The assignment of a partner in trade to satisfy 
■ a creditor of the firm shall be deemed valid in law, but is not to be 
construed to authorize the assignment of partnership effects to 
satisfy individual claims of any of the parties. 
13 



194 UTAH. [Part 6. 



Chapter XVIII, 



MARRIED WOMEN. 

All property owned by either spouse before marriage, and that 
acquired after marriage by gift, bequest, devise, or descent, is the 
separate property of that spouse by whom the same is owned or 
acquired ; and as such, may be held, owned and controlled, and 
transfered and disposed of by the spouse so owning or acquiring it, 
without any Hmitation or restriction by reason of marriage. 

Either spouse may sue and be sued in law. No right of dower 
shall be allowed. 



Chapter XIX. 



CORPORATIONS. 

Any number of persons, not less than six, one-third of whom be- 
ing residents of the Territory, may incorporate for purposes of 
manufacturing, mining, or conducting any commercial or other in- 
dustrial pursuit, or for constructing roads, ditches, colonization and 
improvements for lands, colleges, seminaries, churches, libraries, or 
any benevolent, charitable, christian or scientific associations, or for 
any rightful subject consistent with the Constitution of the United 
States, and the laws of the Territory. 

Stock may be subscribed and paid up in property. No individ- 
ual liability upon stockholders. The probate judge is the officiat- 
ing officer in effecting an incorporation. 



Chaps. 20, 21.] utail 195 



Chapter XX. 

CHATTEL MORTGAGES. 

We have no statute defining what property is the subject of 
chattel mortgage, but an action for the recovery of debts secured 
by a mortgage on either real or personal property, or both, is pro- 
vided for by statute, giving poAver to the ourts to render judg- 
ment, and make decree of foreclosure, and order of sale of the^ 
mortgaged property, in satisfaction of the debt, and providing for- 
an ordinary judgment lien and execution for unpaid balance, after 
sale of the mortgaged property. 



Chapter XXI, 



INTEREST AND USURY. 



Ten per cent, per annum interest is allowed on debts, due, where 
no contract as to interest exists. There is no usury statute, and 
parties are at liberty to contract for rates of interest without limit, 
and any agreed rate is collectable. 



Part YII. 



IDAHO TERRITORY 



PREPARED EXPRESSLY FOR THIS WORK BY JONAS W. BROWN, 

IDAHO CITY. 



Chapter I. 

COURTS, THEIR JURISDICTION AND TERMS. 

The judicial power of the Territory is vested in a Supreme Court, 
three District Courts, Probate Courts for each county, and Justices 
of the Peace. 

The Supreme Court 

Has appellate jurisdiction in all civil cases where the amount in 
dispute exceeds in value one hundred dollars, and in all criminal 
cases tried in District Courts. Meets at Boise City annually, on 
the first Monday of January. 

District Courts 

Have original jurisdiction in all civil cases where the amount in 
dispute exceeds one hundred dollars, and in all criminal cases 



198 > IDAHO. [Part 7. 

prosecuted by indictment. Their appellate jurisdiction extends to 
hearing all cases on appeal from Probate Courts and Justices' 
Courts. They have exclusive jurisdiction in all equity cases, and 
in all cases involving the title to real estate. 

The terms of the District Courts are fixed annually for the sev- 
eral counties by the Supreme Court. 

The Probate Courts 

Have jurisdiction of all probate matters, same as in California. 
They have also concurrent jurisdiction (by special act of Con- 
gress) with the District Courts in all civil actions, when the amount 
in controversy shall not exceed five hundred dollars, exclusive of 
interest.; and the same rules of practice govern in Probate Courts 
in civil cases as in the District Courts, except in the matter of 
appeals to the District Court. The terms of the Probate Courts 
commence on the fourth Monday in each month. 

Justices' Courts 

Have jurisdiction in all civil actions where the sum or damages 
claimed do not exceed one hundred dollars, excepting matters 
where the boundaries of land are in dispute. These Courts are 
always open for business. 



Chapter II. 



COMMENCEMENT OF ACTIONS. 

Civil actions in the District Courts and the Probate Courts shall 
be commenced by the fihng of a complaint with the clerk of the 
Court in which the action is brought : Provided^ that after the 



Chap. 3.] IDAHO. 199 

filing of the complaint, a defendant in the action may appear, 
answer, or demur, whether the summons has been issued or not, 
and such appearance, answer, or demurrer be deemed a waiver of 
summons. 

The clerk shall indorse on the complaint the day, month, and 
year the same is filed ; and at any time within one year after the 
filing of the same, the plaintiff may have a summons issued. The 
act defining jurisdiction of Probate Courts provides that the sum- 
mons may be issued at any time within six months from the filing 
of the complaint. 

In the District Court the defendant must answer in ten days, if 
served within the county in which the action is brought ; in twenty 
days, if served without the county, but within the judicial district 
in which the action is brought. In all other cases, thirty days. In 
the Probate Court, answer must be filed in ten days. 



Chapter III. . 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the following causes shalFbe tried in the county in 
which the subject of the action, or some part thereof, is situated, 
subject to the power of the Court to change the place of trial: 

1. For the recovery of real property, or of an estate or interest 
therein, or for the determination, in any form, of such right or in- 
terest, or for injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property ; provided, 
when such real property is situate partly in one county and partly 
in another, the plaintiff may select either of said counties, and the 
county so selected shall be the proper county for the trial of such 
action. 



200 IDAHO. [Part?. 

Actions for the following causes shall, be tried in the county 
where the cause, or some part thereof, arose ; subject to the like 
power of the Court to change the place of trial : 

1. For the recovery of a penalty or forfeiture imposed by a stat- 
ute, except that when it is imposed for an offense committed on" a 
lake, river, or other stream of water situated in" two or more coun- 
ties, the action may be brought in any county bordering on such 
lake, river, or other stream, and opposite the place where the oifense 
was committed. 

2. Against a public officer, or person especially appointed to exe- 
ecute his duties, for an act done by him in virtue of his office, or 
against a person who, by his command, or in his aid, does anything 
touching the duties of such officer. 

In all other cases, the action shall be tried in the county in 
w^hich the defendants, or any of them, may reside at the commence- 
ment of the action ; or if none of the defendants reside in this Ter- 
ritory, or, if residing in this Territory, the county in which they so 
reside be unknown to the plaintiff, the same may be tried in any 
county which the plaintiff'may designate in his complaint ; and if any 
defendant or defendants may be about to depart from the Territory, 
such action may be tried in any county where either of the parties 
reside or may be found, or service be had ; subject, however, to the 
power of the Court to change the place of trial, as provided in the 
act. 



Chapter IV. 



LIMITATIONS OF CIVIL ACTIONS. 

^ Eive Years : 
Real estate, including quartz mines or lodes, judgments or de- 
crees of any Court of the United States, or of any State or Terri- 
tory of the United States. 



Chap. 4.] IDAHO. 201 

Four Years: 
Any contract, obligation, or liability founded upon an instrument 
of writing. 

Three Years: 

Trespass upon real property, taking, detaining or injuring goods 
or chattels or for the specific recovery of personal property. Relief 
on ground of fraud. 

Tiuo Years : 

Contract or liability not founded on an instrument of writing, in- 
cluding accounts. An action for libel or slander. 

One Year : 
Placer mining claims. 

General Provisions : 

An action upon any contract, obligation or liability for the pay- 
ment of money, founded upon an instrument of writing executed 
out of this Territory, or any other Territory from which this Terri- 
tory is in part formed, can only be commenced as follows : 

1. Within one year, when more than two and less than five 
years have elapsed since the cause of action accrued. 

An action upon any judgment, contract, obligation or liability 
for the payment of money or damages, obtained, executed, or.made 
out of this Territory, or any other Territory from which this Terri- 
tory is in part formed, shall only be commenced within three years 
after the party making such liabilities shall be a resident of this 
Territory. 

No acknowledgment of promise shall be suflScient evidence of a 
new continuing contract, whereby to take the case out of the oper- 
ation of the statute, unless the same be contained in some writing 
signed by the party to be charged thereby. 



202 IDAHO. [Part 7. 



Chapter V. 



ATTACHMENTS. 

The plaintiiF, at the time of issuing the summons, or at any time 
afterward, may have the property of the defendant attached as 
security for the satisfaction of any judgment that may be recovered, 
unless the defendant give security to pay such judgment, in the 
following cases : 

1. In an action upon a contract, express or implied, for the di- 
rect payment of money, which contract is not secured by a mort- 
gage, lien, or pledge upon real or personal property ; or if so 
secured, that such security has, without any act of the plaintiff, or 
the person to whom the security was given, become valueless. 

2. In an action upon a contract, express or implied, against a 
defendant not residing in this Territory. 

The clerk of the Court shall issue the writ of attachment upon 
receiving an affidavit by or on behalf of the plaintiff, which shall be 
filed, letting forth — 

1. That the defendant is indebted to the plaintiff, specifying the 
amount of such indebtedness over and above all legal set-offs and 
counter-claims, upon a contract, express or implied, for the direct 
payment of money ; and that the payment of the same has not been 
secured by any mortgage, lien, or pledge upon real or personal 
property ; or, if so secured, that such security has, without any act 
of the plaintiff, or the person to whom the sec^irity was given, be- 
come valueless ; or, 

2. That the defendant is indebted to the plaintiff, specifying the 
amount of the indebtedness as near as may be, over and above all 
legal set-offs and counter-claims, and that the defendant is a non- 
resident of the Territory ; and, 

3. That the attachment is not sought, and the action is not prose- 
cuted, to hinder, delay, or defraud any creditor or creditors of the 
defendant. 



Chap. 6.] IDAHO. 203 

Before issuing the writ, the clerk must require a written under- 
taking on the part of the plaintiff, in a sum not less than two hun 
dred dollars, and not exceeding the amount claimed by the plaintiff, 
with sufficient sureties, to the effect that if the defendant recover 
judgment, the plaintiff will pay all costs that he may sustain by 
reason of the attachment, not exceeding the sum specified in the 
undertaking, if the attachment be wrongfully issued. 



Chapter VI. 

ARREST IN CIVIL ACTION. 

The defendant may be arrested, as hereinafter provided, in the 
following cases : 

1. In an action for the recovery of money or damages on a cause 
of action arising upon contract, express or implied, when ^ the de- 
fendant is about to depart from the Territory, with intent to de- 
fraud his creditors ; or when the action is for willful injury to person, 
to character, or to property, knowing the property to belong to 
another. 

2. In an action for a fine or penalty, or on a promise to marry, 
or for money or property embezzled, or fraudulently applied, or 
converted to his own use by a public ofiicer, or an officer of a cor- 
poration, or an attorney, factor, broker, agent, or clerk, in the course 
of his employment as such, or by any other person in a fiduciary 
capacity, or for misconduct or neglect in office, or in a professional 
employment, or for a willful violation of duty. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property, or any part thereof, has been 
concealed, removed, or disposed of, to prevent its being found or 
taken by the sheriff. 



204 IDAHO. [Part 7. 

4. When the defendant has been guilty of fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion,. or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

To obtain an order of arrest, it must appear to the judge, by the 
affidavit of the plaintiflf or some other person, that a sufficient cause 
of action exists, and that the case is one of those above mentioned. 
The affidavit must be positive, or upon information and belief. Be- 
fore making an order, the judge must require a written undertak- 
ing on the part of plaintiff, with sureties in an amount to be fixed 
by the judge, which must be at least five hundred dollars. 



Chapter VII. 

* JUDGMENTS AND JUDGMENT LIENS. 

In an action on a contract or obligation, in writing, for the direct 
payment of money, made payable in a specified kind of money or 
currency, judgment for the plaintiff may follow the contract or obli- 
gation, and be made payable in the kind of money or currency 
specified therein. 

From the time the judgment is docketed it becomes a lien upon 
all the real property of the judgment debtor, not exempt from exe- 
cution in the county, owned by him at the time, or which he may 
afterwards acquire, until the lien expires. The lien continues for 
two years. 

A transcript of the original docket, certified by the clerk, and 
filed with the recorder of any other county, becomes a lien on the 
property of the judgment debtor in such county, and continues for 
two years. 



Chap. 8.] IDAHO. 205 

A transcript of a judgment of a Probate Court, filed and dock- 
eted in the office of the district clerk, becomes a Hen upon the real 
estate of the judgment debtor for two years from date of filing and 
docketing. 

A transcript of a judgment of a justice of the peace becomes a 
lien upon real estate by being filed and recorded in the county re- 
corder's office. By filing and docketing same in district clerk's 
office, the clerk may issue execution to any other county in the Ter- 
ritory. 



Chapter YIII. 



EXECUTIONS, EXEMPTIONS, SALE AND REDEMP- 
TION. 

A writ of execution to enforce the judgment may be issued at 
any time within five years after the entry thereof. In all cases 
other than for the recovery of money, the judgment may be en- 
forced or carried into execution after the lapse of five years from 
the date of its entry, by leave of .the Court, upon motion or by 
judgment for that purpose, founded upon supplemental pleadings. 

Exemptions from Execution. 

1. Chairs, tables, desks and books, to the value of one hundred 
dollars, belonging to the judgment debtor. 

2. Necessary household, table and kitchen furniture belonging 
to the judgment debtor, including stove, stovepipe, and stove furni- 
ture of whatever kind, wearing apparel, beds, bedding and bed- 
steads, and provisions actually provided for individual or family use 
sufficient for three months. 

3. The farming utensils or implements of husbandry of the 



206' ' IDAHO. [Part 7. 

judgment debtor ; also, two oxen, or two horses, or two mules, 
and their harness ; two cows, one cart or wagon, and food for such 
oxen, horses, cows or mules for three months ; also, all seed grain 
or vegetables actually provided, reserved, or on hand for the pur- 
pose of planting or sowing at any time within the ensuing six 
months, not exceeding in value the sum of two hundred dollars ; 
the tools and implements of a mechanic necessary to carry on his 
trade ; the instruments and chests of a surgeon, physician, surveyor, 
and dentist necessary to the exercise of their profession, with the 
professional hbrary, and the law libraries of an attorney and 
counsellor ; also, the wardrobe and books of an actor. 

4. The tents and furniture, including a table, camp stools, bed 
and bedding of a miner ; also his rocker, shovels, spades, wheel- 
barrows, pumps, and other instruments used in mining, with provis- 
ions necessary for his support for three months. 

5. Two oxen, two horses, or two mules, and their harness, and 
one cart or wagon, by the use of which a cartman, teamster, or 
other laborer habitually earns his living, and the food for such 
oxen, horses, or mules, for three months ; and a horse used by a 
physician in making his professional visits. 

6. All fire engines, with carts, buckets, hose, and apparatus 
thereto appertaining, of any fire company or department organized 
under any law of this Territory. 

7. All arms and accoutrements required by law to be kept by 
any person. 

8. All court-houses, jails, public offices and buildings, lots, 
ground and personal property, the fixtures, furniture, books, 
papers, and appurtenances belonging to any county in this Terri- 
tory ; and all cemeteries, public squares, parks and public, buildings, 
town halls, markets, buildings appertaining to the fire departments, 
and the lots and grounds thereto belonging and appertaining, owned 
or held by any town or incorporated city, or dedicated by such town ' 
or city to health, ornament, or public use. 

No article above mentioned shall be exempt from . execution 
issued upon a judgment recovered for its price, or upon a mort- 
gage thereon. 



Chap. 8.] IDAHO. 207 



Sale of Property Under Execution. 

In case of perishable property, by posting written notices of the 
time and place of sale in three public places of the precinct, for a 
reasonable time, considering the condition of property. In case of 
other personal property, by posting similar notices in three public 
places of the precinct, township or city where the sale is to take 
place, not less than five, nor more than ten days successively. In 
case of real property, by posting similar notices, particularly des- 
cribing the property, for twenty days successively, in three public 
places of the precinct, township, or city where the property is 
situated, and also where the property is to be sold, and publishing a 
copy thereof once a week for the same period in some newspaper 
published in the county, if there be one. All sales of property 
under execution shall be made at auction to the highest bidder, 
and shall be made between the hours of nine in the morning and 
five in the afternoon. 

Redemption. 

Real estate sold on execution under a judgment may be redeem- 
ed within six months from the date of the sale, either by the judg- 
ment debtor or his successor in interest in the whole or any part of 
the property, or by a creditor having a lien by judgment or mort- 
gage on the property sold, by paying to the purchaser the amount of 
his purchase with eighteen per cent, thereon in addition. The pur- 
chaser is entitled to the rents, issues, and profits. 

Sale upon foreclosure of mortgage held to be final. No re- 
demption. 



208 IDAHO. [Part 7. 



Chapter IX. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

After return of execution unsatisfied, the judgment debtor may- 
be required to answer concerning his property. 

A judgment debtor unjustly refusing to apply property which he 
has to the satisfaction of a judgment against him, may be required 
to appear and answer concerning the same. 

After the issuing or return of execution, or upon proof bj 
affidavit or otherwise, to the satisfaction of the judge, that any 
person or corporation has property of judgment debtor, or is in- 
debted to him in an amount exceeding fifty dollars, such person or 
corporation may be required to appear and answer concerning same. 



Chapter X. 

SECUKITY FOR COSTS. 

When the plaintiff in an action resides out of the Territory, or is 
a foreign corporation, security for costs and charges that may be 
awarded against such plaintiff may be required by the defendant. 
When required, all proceedings shall be stayed until an undertak- 
ing, as required, be filed to pay all costs, not exceeding the sum of 
three hundred dollars, with two sureties. If such security be not 
given within thirty days from the service of notice that security is 
required, the Court may order the action dismissed. 



Chap. 11.] IDAHO. 209 



Chapter XI. 

APPEALS IN GENERAL. 

An appeal may be taken : 1. From a final judgment in an 
action or special proceeding, commenced in the Court in which the 
judgment is rendered, within one year after the entry of judgment. 
But an exception to the decision or verdict, on the ground that it 
is not supported by the evidence, cannot be review^ed on appeal 
from the judgment, unless the appeal is taken within sixty days, 
after the rendition of the judgment. 

2. From a judgment rendered by a Probate or Justice's Courts 
within twenty-one days fromthe entry of judgment. 

3. From an order granting or refusing a new trial ; from an 
order granting or dissolving an injunction ; from an order refusing 
to grant or dissolve an injunction ; from an order dissolving or 
refusing to dissolve an attachment ; from an order granting or 
refusing to grant a change of the place of trial ; from any special 
order made after final judgment, and from an interlocutory judg- 
ment in actions for partition of real property, within thirty days 
after the order or interlocutory judgment is made and entered in 
the minutes of the Court, or filed with the clerk. 

In the District Court, an undertaking must be filed on the part 
of the appellant by at least two sureties, to the effect that the 
appellant will pay all the damages and costs, not exceeding three 
hundred dollars : or that sum must be deposited with the clerk. 

If a stay of proceedings is desired, an undertaking in double 
the amount of the judgment and costs must be filed. 

In the Probate and Justices' Courts, appeals are allowed in all 
cases where the demand, exclusive of interest, or the value of the 
property in controversy, amounts to twenty-five dollars. 

Appeals in Probate and Justices' Courts must be taken in twenty 
days from the rendition of the judgment. 
14 



210 IDAHO. [PartT. 



Chapter XII. 

HOMESTEADS. 

The homestead consisting of a quantity of land, together with 
the dwelling house thereon and its appurtenances, not exceeding 
in value the sum of five thousand dollars, to. be selected by the 
husband and wife, or either of them, or other head of a family, 
shall not be subject to forced sale in execution, or any final process 
from any Court. 

The person or persons claiming a homestead shall do so by writ- 
ten declaration, setting forth that they, or either of them, are mar- 
ried, or if not married, that he or she is the head of a family ; that 
they or either of them, as the case may be, are, at the time of 
making such declaration, residing with their family, or with the 
person under their care and maintenance, on the premises, particu- 
larly describing said premises, and it is their intention to use and 
claim the same as a homestead, which declaration shall be signed 
by the party making the same, and acknowledged and recorded in 
the ofiice of the county recorder. Such exemption shall not extend 
to any mechanic's, laborer's or vendor's lien, lawfully obtained, nor 
to a mortgage or alienation to secure the purchase money or pay 
the purchase money, if the signature of the wife be obtained to the 
same, and acknowledged by her separate and apart from her hus- 
band. 



Chapter XIII. 



ESTATES OF DECEASED PERSONS. 

Every executor or administrator shall, immediately after his ap- 
pointment, cause to be published in some newspaper published in 



Chap. 13.] IDAHO. 211 

the coiint}^ — if there be one ; if not, then in such newspaper as 
may be designated by the Court — a notice to the creditors of the 
deceased requiring all persons having claims against the deceased 
to exhibit them, Avith the necessary vouchers, within ten months 
after tlie first publication of the notice to such executor or adminis- 
trator, at the place of his residence or transaction of business, to be 
specified in the notice. 

If a claim be not presented within ten months — unless the value 
of the estate does not exceed fifteen hundred dollars ; in which case 
notice to creditors shall be given to present their claims within four 
months — after the first publication of the notice, it shall be barred 
forever : provided^ if it be not then due, or if it be contingent, it 
may be presented within ten months after it shall become due or 
absolute : and provided further, that when it shall be made to 
appear by the affidavit of the claimant, to the satisfaction of the 
executor or administrator and the'Jirobate judge, that the claimant 
had no notice, as provided in this act, by reason of absence from 
this Territory, it may be presented at any time before a decree of 
distribution is entered. 

Every claim presented to the administrator shall be supported 
by the affidavit of the claimant that the amount is justly due, that 
no payments have been made thereon, and that there are no off-sets 
to the same to the knowledge of the claimant or affiant : provided^ 
that when the affidavit is made by any other person than the claim- 
ant, he shall set forth in the affidavit the reason it is not made by 
the claimant. The oath may be taken before any officer author- 
ized to administer oaths. (If the claimant is a non-resident, the 
affidavit must be made before a judge or clerk of a Court having a 
seal, or a commissioner for Idaho Territory.) The executor or ad- 
ministrator shall also require satisfactory vouchers or proofs to be 
produced in support of the claim. 

The amount of interest shall be computed and included in the 
statement of the claim, and the rate of interest determined ; pro- 
vided, that no claim which shall have been due and payable thirty 
days prior to the death of the deceased shall bear greater interest 
than ten per cent, per annum from and after the time of issuing 
letters. 



212 IDAHO. [Part 7. 

When a claim, accompanied bj the affidavit required, has been 
presented to the executor or administrator he shall endorse thereon 
his allowance or rejection, with the day and date thereof. If he 
allow the claim, it shall be presented to the judge for his approval, 
•who shall in the same manner endorse upon it his allowance or re- 
jection. 

If the executor or administrator, or the judge, refuse or neglect 
to endorse such allowance or rejection for ten davs after the claim 
shall have been presented to him, such refusal or neglect shall be 
deemed a rejection : if allowed and approved, it must be filed in the 
Probate Court within thirty days. 

If the claim be founded on a bond, bill, note, or other instrument, 
the original instrument shall be presented, and the allowance and 
approval, or rejection, shall be endorsed thereon or attached thereto. 

If the claim, or any part thereof, be secured by a mortgage or 
other lien, such mortgage or evidence of lien shall be attached to~ 
the claim and filed therewith, unless the same be recorded in the office 
of the recorder of the county in which the land lies ; in which case 
it shall be sufficient to describe the morto;ao;e or lien, and refer to 
the date, volume and page of its record. 

In all cases the claimant may withdraw his claim from file on 
leaving a certified copy, with a receipt endorsed thereon, by him- 
self or his agent. If the original instrument be lost or destroyed, 
then, in lieu thereof, the claimant shall be required to file his affi- 
davit particularly describing such instrument, and stating the loss 
or destruction thereof. 

When a claim is rejected, either by the executor or administra- 
tor or probate judge, the holder shall bring suit in the proper Court 
against the executor or administrator, within three months after the 
date of its rejection, if it be then due, or within three months after 
it becomes due, otherwise the claim shall be forever barred. 

No claim shall be allowed which is barred by the statute of limi- 
tations. 

The executor, administrator or probate judge may allow a claim 
in part, and if the claimant fail to recover a greater sum he is al- 
lowed no costs. 

The debts of the estate are paid in the following order : 

1. Funeral expenses. 



Chap. 14.] IDAHO. 213 

2. The expenses cf the last sickness. 

3. Debts having preference by the laws of the United States. 

4. Judgments rendered against the deceased in his lifetime, and 
mortgages in the order of their date. 

5. All other demands against the estate. 

The mortgages in preference extend only to the proceeds of the 
property mortgaged; any deficiency must be classified and paid un- 
der the fifth head. 

Executors and administrators should make a settlement of the 
estate at the expiration of one year ; except where the value of the 
estate does not exceed fifteen hundred dollars, the Court may order 
the estate settled in six months. 



Chapter XIY. 

DEPOSITIONS. 

The deposition of a witness in this Territory, who is a party to 
the action or proceeding ; or who resides out of the county, or is 
about to leave the county where the action is to be tried ; or is too 
infirm to attend the trial ; or when the testimony is required upon 
a motion, or in any other case where the oral examination of the 
witness is not required, may be taken by either party, before any 
judge or clerk, or any justice of the peace, or notary public in this 
T^^ritory, on serving upon the adverse party previous notice of 
the time and place of the examination, together with a copy of an 
afiidavit, showing that the case is one of the above mentioned. 
Such notice shall be at least five days, and- in addition one day for 
every twenty-five miles of the distance of the place of examination 
from the residence of the person to whom the notice is given, un- 
less a shorter time is prescribed by the judge. 



214 IDAHO. [Part 7. 

The deposition of a witness out of this Territory may be taken 
upon commission issued from the Court, under the seal of the 
Court, upon an order of the judge or Court, or probate judge, on 
the application of either party, upon five days' notice to the other. 
If issued to any place within the United States, it may be directed 
to a person agTeed upon by the parties, or if they do not agree, to 
any judge or justice of the peace, or commissioner selected by the 
officer issuing it. 

If issued to any country out of the United States, it may be di- 
rected to a minister, ambassador, consul, vice consul, or consular 
agent of the United States in such country, or to any person agreed 
on by the parties. 

The commission shall authorize the commissioner to administer 
an oath to witness, and to take his deposition in answer to the in- 
terrogatories ; or when the examination is to be made without in^ 
terrogatories, in respect to the matter in dispute; and to certify the 
deposition to the Court, in a sealed envelope, directed to the clerk 
or other person designated or agreed upon, and forward to him by 
mail or other usual channel of conveyance. 



Chapter XY. 

JUDICIAL RECORDS. 

A judicial record of this Territory or of the United States may 
hb proved by the production of the original or copy thereof, certi- 
fied by the clerk, or other person having the legal custody thereof, 
under the seal of the Court, to be a true copy of such record. 

The records or judicial proceedings of the Courts of any State 
of the United States may be proved or admitted in the Courts of 
this Territory, by the attestation of the clerk and the seal of the 



Chap. 16.] IDAHO. 215 

Court annexed, (if there be a seal) together with the certificate 
of the judge, chief justice or presiding magistrate, as the case 
may be, that the attestation is in due form. 

A seal of a Court or pubhc officer, when required, may be im- 
pressed with w^ax, wafer or any other substance, and then attached 
to the instrument or document ; or it may be impressed on the pa- 
per alone. 



Chapter XVI. 

ACKNOWLEDGMENTS. 

Acknowledgments are required in all conveyances affecting real 
estate. The same certificate required as in California. 
May be taken by : 

1. If acknowledged or proved within this Territory, by some 
judge or clerk of a Court having a seal, or some notary public, re- 
corder or justice of the peace of the proper county. 

2. If acknowledged or proved without this Territory, and within 
the United States, by some judge or clerk of any Court of the 
United States, or of any State or Territory having a seal, or by 
any commissioner appointed by the Governor of this Territory. 

■3. If acknowledged or proved without the United States, by 
some judge or clerk of any Court, (having a seal) of any State, 
Kingdom or Empire, or by a notary public therein, or by any min- 
ister, commissioner, or consul of the United States appointed to 
reside therein. 

The act concerning conveyances of real estate, or any interest 
therein, and mortgages, is the same as in California. 



216 IDAHO. [Part 7. 



Chapter XVII. 

LIMITED PARTNERSHIPS. 

Limited partnerships for the transaction of mercantile, mechani- 
cal, mining or manufacturing business may be formed, but not for 
the purpose of banking or insurance. 

No such partnership shall be deemed to have been formed until 
a certificate which shall contain the name or firm under which said 
partnership is to be conducted, the names and respective places of 
residence of all the general and special partners, distinguishing 
who are general, and who are special partners, the amount of capi- 
tal which each special partner has contributed to the capital stock , 
the general nature of the business to be transacted, the time when 
the partnership is to commence and terminate, shall be made and 
severally signed and acknowledged by ail the partners, before an 
officer authorized to take acknowledgment of deeds, and recorded 
in the office of the recorder of the county in which the principal 
place of business of the partnership is located. If there shall be a 
place of business in different counties, said certificate shall be re- 
corded in each of such counties ; a copy of such certificate shall be 
published three successive weeks in the county where the principal 
place of business is located. 

Any false statement in the certificate makes all the partners lia- 
ble as general partners. 

The special partners shall not be personally liable for any debts 
of the partnership, except their names be used in said firm with 
their consent or privity, or shall personally make any contract re- 
specting the concerns of the partnership with any person except 
the general partner. 



Chap. 18.] IDAHO. 217 



Chapter XVIII. 

MARRIED WOMEN. 

All property both real and personal, of the wife before marriage, 
and that acquired afterwards, by gift, bequest, devise or descent, 
is her separate property, and all the husband's is his separate prop- 
erty. AH other property acquired after marriage is common prop- 
erty. 

The wife is required to make, sign, acknowledge, and have re- 
corded a complete inventory of her separate property, in the office 
of the recorder of the county where the property is situated. The 
husband has the management and control of the wife's separate 
property during marriage, but cannot alienate or create a hen or 
incumbrance on the same, except by instrument signed and ac- 
knowledged by both husband and wife. 

The District Court may, on application of the wife, appoint a 
trustee to take charge of and manage her separate property, if the 
husband mismanages it or commits waste. 

The husband has entire control of common property and his own 
separate property, and the rents and profits of all the separate 
property of both husband and wife are deemed common property, 
unless expressly provided in the instrument or devise to the con- 
trary. Upon dissolution of the community by death, half of the 
common property goes to the survivor and half to the descendants, if 
there are any ; if not, all to the survivor. Upon dissolution by 
decree of Court, the common property must be equally divided, 
unless the decree is granted on the ground of adultery or extreme 
cruelty, when the division of the same is left to the discretion of 
the Court granting the decree. 

The separate property of the husband is not liable for the debts 
of the wife contracted before marriage, but the separate property 
of the wife is liable for all such debts. 



218 IDAHO. [Fart 7. 



Chapter XIX. 

COKPORATIONS. 

There is a general law for the formation of corporations, bj 
which three or more persons maj form a corporation by filing a 
certificate in writing with the clerk of the District Court of the 
district in which the principal place of business of the corporation 
is intended to be located, and a certified copy of the same, under 
the hand of the clerk and the seal of the Court, in the office of 
the secretary of the Territory. Said certificate must state the cor- 
porate name of the company, the object for which it is formed, amount 
of capital stock, term of existence, (not to exceed fifty years) num- 
ber of shares, number of trustees and their names who shall man- 
age the concerns of the corporation for the first three months, and 
principal place of business. 

The total amount of the debts of the corporation shall not, at 
any time, exceed the amount of the capital stock actually paid in ; 
and in case of any excess, the trustees under whose administration 
the same may have happened, except those who have caused their 
dissent therefrom to be entered at large on the minutes of the 
board of trustees at the time, and except those not present at the 
time when the same did happen, shall, in their individual and pri- 
vate capacities, be liable jointly and severally to the said corpora- 
tion, and in the event of its dissolution, to any of the creditors 
thereof, for the full amount of such excess. 

Each stockholder shall be individually and personally liable for 
his proportion of all the debts and liabihties of the corporation, 
contracted or incurred during the time that he was a stockholder, 
for the recovery of which joint or several actions may be instituted ; 
and when a judgment in such action shall be recovered against 
joint stockholders, the Court on the trial thereof shall apportion the 
amount of the liability of each, and in the execution thereof no 
stockholder shall be liable beyond his proportion so ascertained. 



Chaps. 20, 21.] Idaho. 219 



Chaptee XX. 

CHATTEL MORTGAGES 

May be given upon all kinds of personal property. To be valid 
against subsequent incumbrancers, or purchasers in good faith, for 
a valuable consideration, the mortgage must show the residence, 
and the profession, trade or occupation of both the mortgagor and 
mortgagee, and each of the parties must make affidavit thereto, 
that the mortgage is made in good faith, and without any design to 
hinder, delay or defraud creditors. When so made and recorded 
in the office of the recorder of deeds, such mortgage is good against 
all persons. 



Chapter XXI. 

INTEREST AND USURY. 

Ten per cent, per annum is the legal rate of interest. Parties 
may agree in writing for any rate of interest not exceeding two 
per cent, per month, but any judgment rendered upon such con- 
tract bears only ten per cent, per annum. The penalty for a greater 
rate than above specified is three times the amount so paid, and the 
person receiving a greater rate than two per cent, per month is lia- 
ble to a fine of three hundred dollars, or six months' imprisonment, 
or both. Interest does not commence to run on open accounts un- 
til a balance is struck and agreed to, or a settlement is had. 



220 IDAHO. [Part 7. 



Chapter XXII. 

AFFIDAVITS. 

An affidavit to be used before any Court, judge or officer of this 
Territory may be taken before any judge or clerk of any Court, or 
any justice of the peace or notary public in this Territory. 

An affidavit taken in another State or Territory of the United 
States, to be used in this Territory, shall be taken before a com- 
missioner appointed by the Governor of this Territory to take affi- 
davits and depositions in such other State or Territory, or before 
the judge of a Court of record having a seal. An affidavit taken 
in a foreign country, to be used in this Territory, shall be taken 
before an ambassador, minister, or consul of the United States, or 
before any judge of a Court of record having a seal in such for- 
eign country, or before a commsssioner of deeds appointed by the 
governor. 

When an affidavit is taken before a judge of a Court in another 
State or Territory, or a foreign country, the genuineness of the 
signature of the judge, the existence of the Court, and the fact 
that such judge is a member thereof, shall be certified by the clerk 
of the Court under the seal thereof. 



Chapter XXIII. 



SOLE TRADERS. 



A married woman may become a sole trader by the judgment of 
the Probate Court of the county in which she has resided for six 
months next preceding the application. 



Chap. 23.] IDAHO. 221 

A person intending to make application to become a sole trader 
must publish notice of such intention in a newspaper published in 
the county, or if there be none, then in a newspaper published in 
an adjoining county, for four successive weeks. 

The notice must specify the term and the day upon which appli- 
cation will be made, the nature and place of the business proposed 
to be conducted by her, and the name of her husband. 

Ten days prior to the day named in the notice, the applicant 
must file a verified petition, setting forth : 

1. That the application is made in good faith, to enable the ap- 
plicant to support herself, and others dependent upon her, giving 
their names and relation. 

2. The fact of insufficient support from her husband, and the 
causes thereof, if known. 

3. Any other grounds for application, which are good causes for 
a divorce, with the reason why a divorce is not sought ; and, 

4. The nature of the business proposed to be conducted, and the 
capital to be invested therein, if any, and the sources from which 
it is derived. 

The applicant may invest in the business proposed to be conduct- 
ed a sum derived from the community property or of the separate 
property of the husband, not exceeding five hundred dollars. 

Any creditor of the husband may oppose the application by fil- 
ing in the Court (prior to the day named in the notice) a written 
opposition, verified, containing either : 

1. A specific denial of the truth of any material allegation of 
the petition, or setting forth — 

2. That the appUcation is made for the purpose of defrauding 
the opponent ; or, 

3. That the application is made to prevent, or will prevent him 
from collecting his debt. 

Issues of fact must be tried as in other cases. If the facts found 
sustain the petition, the Court must render judgment, authorizing 
the applicant to carry on in her own name and on her own account, 
the business specified in the notice and petition. 

The sole trader must make and file Avith the clerk of the Court 
an affidavit, in the following form : 



222 IDAHO. [Part 7. 

'' I, A B, do, in presence of Almighty God, solemnly swear 
that this application was- made in good faith, for the purpose of 
enabhng me to support myself, (and any dependent, such as hus- 
band, parent, sister, child, or the like, naming them, if any) and 
not with any view to defraud, delay or hinder any creditor or cred- 
itors of my husband ; and that, of the moneys so to be used by me 
in business, not over five hundred dollars have come, either di- 
rectly or indirectly, from my husband ; so help me God." 

A certified copy of the decree, with this oath endorsed thereon, 
must be recorded in the office of the recorder of the county where 
the business is to be carried on. 

A married woman who is adjudged a sole trader is responsible 
and liable for the maintenance of her minor children. 

The husband of a sole trader is not liable for any debt contract- 
ed by her in the course of her sole trader's business, unless con- 
tracted upon his written consent. 



Part VIII. 



WYOMING TERRITORY 



PREPARED EXPRESSLY FOR THIS WORE BY E. P. JOHNSON, CHEYENNE. 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The Courts provided for this Territory are a Supreme Court, 
District Courts, Probate Courts, and Justices of the Peace. 

The Supreme Court has no original jurisdiction, except in ha- 
beas corpus cases. It exercises an appellate jurisdiction, princi- 
pally in cases coming up from the District Courts. 

The District Courts have chancery and common law jurisdiction, 
and jurisdiction in appeals from the Justice and Probate Courts. 

The Probate Court has no jurisdiction, except over probate busi- 
ness proper. 

The Justices of the Peace have no jurisdiction of any matter in 
controversy where the title or boundaries of land may be in dispute, 
or where the debt or sum claimed shall exceed one hundred dollars. 



224 WYOMING. [Part 8. 



Chapter II. 

TERMS OF COURTS, WHEN AND WHERE HELD. 

The Territory is divided into three judicial districts. Laramie 
county composes the first ; Albany and Carbon the second ; Sweet- 
water and Uinta the third. Terms of Court are held in each, as 
follows : 

At Cheyenne, commencing on the fourth Monday of May and 
first Monday of November of each year. 

At Laramie, commencing on the first Monday of February and 
August of each year. 

At Rawlins, commencing on the first Monday of April and sec- 
ond Monday of September of each year. 

At Areen River, on the first Monday of May and October of 
each year. 

At Evanston, commencing on the first Monday of January and 
July of each year. 



Chapter III. 



COMMENCEMENT OF ACTIONS, TIME TO ANSWER, 
PLACE OF TRIAL. 

Actions are commenced by filing in the office of the clerk of the 
proper Court a petition, and causing a summons thereon to be is- 
sued. The summons is returnable on the second Monday after the 
day of its date, and the answer or demurrer of the defendant shall 
be filed on or before the third Saturday after the return day of the 
summons. 



Chap. 4.] WYOMING. 225 

Civil actions must be tried in the county in which they are com- 
menced, unless upon application for a change of venue based upon 
sufficient reasons the Court orders the place of trial to be changed ; 
and in such case, the Court must send the cause to the most con- 
venient county. 



Chapter IV. 



LIMITATION OF ACTIONS. 

Actions for the recovery of real property can only.be brought 
within twenty-one years after the cause of action shall have ac- 
crued, except actions of forcible entry and detainer, or forcible and 
unlawful detention, only of real property, which must be commenced 
within two years after the cause of action shall have accrued. 

An action upon a specialty, or any agreement, contract or prom- 
ise in writing, or on a foreign judgment, must be brought within 
fifteen years. And actions upon contract not in writing, express 
or implied, or upon a liability created by statute, must be brought 
within six years after the cause of action shall have accrued. 

This Territory makes no discrimination against causes of action 
arising outside of its borders. With respect to limitation, all causes 
of action stand on the same footing, without reference to the place 
of contract or rendition of judgment. 

15 



226 WYOMiNGf. [Part 8. 



Chapter V. 



ATTACHMENTS. 

The creditor in a civil action for the recovery of money may, at 
or after the commencement thereof, by filing the necessary affidavit, 
have an attachment against the property of the debtor, and upon 
the grounds herein stated : 

1. When the debtor, or one of several debtors, is a foreign cor- 
poration, or a non-resident of this Territory. 

2. Has absconded with the intent to defraud his creditors. 

3. Has left the county of his residence to avoid the service of a 
summons. 

4. So conceals himself that a summons cannot be served upon 
him. 

6. Is about to remove his property, or a part thereof, out of the 
jurisdiction of the Court, with the intent to defraud his creditors. 

6. Is about to convert his property, or a part thereof, into 
money, for the purpose of placing it beyond the reach of his credit- 
ors. 

7. Has property or rights in action which he conceals. 

8. Has assigned, removed, or disposed of, or is about to dispose 
of his property, or a part thereof, with the intent to defraud his 
creditors. 

9. Fraudulently contracted the debt or incurred the obligation 
for which suit is about to be or has been brought. 

But an attachment shall not be granted on the ground that the 
debtor is a foreign corporation, or a non-resident of this Territory, 
for any other claim than a debt or demand arising upon contract, 
judgment, or decree. 

When a foreign corporation or non-resident is defendant, the 
writ may issue without an undertaking. In all other cases the 
writ will not be issued by the clerk of the Court until there has 
been executed and filed in his office an undertaking, with sureties 



Chap. 6.] WYOMING. 227 

approved by him, in double the amount of plaintiff's claim, to the 
effect that plaintiff shall pay all damages which defendant may sus- 
tain by reason of the attachment, if the writ be wrongfully ob- 
tained. 



Chapter VI. 



ARREST IN CIVIL ACTIONS. 

No person can be imprisoned for debt in any civil action on mesne 
or final process, unless in case of fraud. An order for the arrest 
of the debtor shall be made by the clerk of the Court in which the 
action is brought, when there is filed in his office an affidavit of the 
creditor, or his authorized agent or attorney, made before any judge 
of any Court of the Territory, or clerk thereof, or justice of the 
peace, stating the nature of the creditor's claim, that it is just, and 
the amount thereof as nearly as may be, and establishing one or 
more of the following particulars : 

1. That the debtor has removed, or begun to remove, any of his 
property out of the jurisdiction of the Court, with intent to defraud 
his creditors. 

2. That he has begun to convert his property, or a part thereof, 
into money, for the purpose of placing it beyond the reach of his 
creditors. 

3. That he has property or rights of action which he fraudulently 
conceals. 

4. That he has assigned, removed, or disposed of, or has begun 
to dispose of his property, or a part thereof, with intent to defraud 
his creditors. 

5. That he fraudulently contracted the debt or incurred the ob- 
ligation for which suit is about to be or has been brought. 

The affidavit must also contain a statement of the facts claimed 



228 • WYOMING. [Part 8. 

to justify the belief in the existence of one or more of the above par- 
ticulars. The creditor, before the issuing of the order of arrest, 
must give bond in double the amount of the claim stated in the affi- 
davit. The death of a person under arrest does not satisfy the 
judgment. 



Chapter VII. 

JUDGMENT LIENS. 

A judgment is a lien on the lands and tenements of a judgment 
debtor from the first day of the term at which it is rendered ; but 
judgments by confession and judgments rendered at the same term 
at which the action is commenced bind such lands only from the date 
of their rendition. 

If execution is not sued out within five years from the date of 
the rendition of judgment, such judgment becomes dormant, and 
ceases to operate as a lien. The judgment may subsequently be 
revived, but the lien is not restored, except from the date of revivor. 



Chapter VIII, 



EXECUTIONS, SALE, REDEMPTION AND EXEMPTIONS. 

Executions are of three kinds : 

1. Against the property of the judgment debtor. 

2. Against his person. 



Chap. 8.] WYOMING. 229 

3. For the delivery of the possession of real property, with 
damages for witholding the same and costs. 

The officer having the writ must levy first on the goods and 
chattels of the debtor, but if no goods be found, he shall endorse 
on the writ "no goods," and forthwith levy the writ of execution 
upon the lands and tenements of the debtor liable to satisfy the 
judgment. 

The officer may sell goods and chattels seized, by first publishing 
notice of the time and place of sale, for a period of ten days. 
Notice of the sale of lands and tenements must be published thirty 
days prior to the sale. 

There is now in this Territory no statute providing for the re- 
demption of property, either real or personal, sold on execution. 

The exemptions from levy, or seizure, are a homestead not ex- 
ceeding in value 81500, so long as it is actually occupied as such 
by the debtor and his family, the value to be ascertained by ap- 
praisers. 

So, too, the following personal property, when owned by the head 
of a family who is residing with the same : Furniture, bedding, 
and provisions, and such other articles as the debtor may select, 
not exceeding in value §500. 

There is also exempt the necessary wearing apparel of every 
person, not exceeding in value $50. 

The tools, team, and implements, or stock in trade of any 
mechanic, miner or other person, used and kept for the purpose of 
carrying on his trade or business, not exceeding in value $300. 
Also the library, instruments and implements of any professional 
man, not exceeding in value $300. 

There is no exemption in favor of a person not an actual resident 
of the Territory, nor one about to remove or abscond therefrom. 
iVnd no article of property is exempt from attachment or sale, 
upon execution for the purchase money of said article of property. 



230 WYOMING. [Part 8. 



Chapter IX. 

PROCEEDINGS IN AID OF EXECUTIONS. 

Proceedings in aid of executions may be had, in which the 
debtor may be examined and compelled to disclose and appropriate 
to the payment of the judgment any property which he may have 
unjustly refused to apply to that purpose. 

A receiver may be appointed to take and dispose of such prop- 
erty of the judgment debtor that may be unearthed on examination, 
either legal or equitable, and appropriate the proceeds to the pay- 
ment of the judgment. 



Chapter X. 



SECURITY FOR COSTS. 



In all cases in which the plaintiff is a resident of the county in 
which the action is brought, he must furnish security for costs be- 



fore commencing such action. 



Chaps. 11, 12.] WYOMING. 231 



Chapter XI. 



APPEALS. 

In actions at law, final judgments and orders may be reviewed on 
writ of error, or petition in error sued out any time within three 
years after rendition. 

In chancery cases, review may be had by appeal, if the appeal 
is perfected within thirty days after the decree complained of. 

Where the judgment or decree sought to be reviewed is for the 
payment of money, security must be given in double the amount of 
the decree or judgment. In other cases the amount of security is 
fixed by the Court. 



Chapter XII. 

ESTATES OF DECEASED PERSONS. 

Estates of deceased persons are settled in the Probate Courts 
through the usual means of executors and administrators. 

Claims against the estate must be presented within one year after 
the granting of letters testamentary or of administration, and if not 
so presented, are forever barred. 

Every executor and administrator must exhibit a statement of 
the accounts of his administration for settlement, with proper 
vouchers, to the Probate Court, at its first term after the end of six 
months from the date of his letters, and at the corresponding term 
of Court every six months until administration be completed. 



232 ■ WYOMING. [Parts. 

Chapter XIII. 

DESCENTS AND DISTRIBUTION OF PPvOPERTY. 

1. Whenever any person having title to any real estate, or prop- 
erty having the nature or legal character of real estate, or personal 
estate undisposed or otherwise limited by marriage settlement, shall 
die intestate as to such estate, it shall descend and be distributed 
in parcenary to his kindred, male and female, subject to the pay- 
ment of his debts, in the following course and manner, namely : If 
such intestate leave a husband or wife and children, or the de- 
scendants of any children, him or her surviving, one-half of such 
estate shall descend to such surviving husband or wife, and the resi- 
due thereof to such surviving children and descendants of children 
as hereinafter Hmited ; if such intestate leave a husband or wife 
and no child nor descendants of any child, then the real and per- 
sonal estate of such intestate shall descend as follows, to wit : 
Three-fourths thereof to such surviving husband or wife, and one- 
fourth thereof to the father and mother of the intestate, or the sur- 
vivor of them. Provided^ That if the estate of such intestate, 
real and personal, does not exceed in value the sum of ten thousand 
dollars, then the whole thereof shall descend to and vest in the 
surviving husband or wife as his or her absolute estate, subject to 
the payment of debts as aforesaid. Dower and the tenancy by the 
courtesy are aboHshed, and neither husband nor wife shall have 
any share in the estate of the other save as herein provided. Ex- 
cept in cases above enumerated, the estate of any intestate shall 
descend and be distributed as follows : 

First. — To his children surviving, and the descendants of his 
children who are dead, (the descendants collectively taking the 
share their parent would have taken if living). 

Second. — If there be no children nor their descendants, then to 
his father, mother, brothers and sisters, and to the descendants of 
brothers and sisters who are dead, (the descendants collectively tak- 



Chap. 13.] WYOMING. 233 

ing the share their parent would have taken if living) in equal 
parts. 

Third. — If there be no children nor their descendants, nor fa- 
ther, mother, brothers, sisters, nor descendants of deceased brothers 
or sisters, nor husband nor wife living, then to the grandfather, 
grandmother, uncles, aunts and their descendants, (the descend- 
ants taking collectively the share of their immediate ancestors) in 
equal parts. 

2. All posthumous children or descendants of the intestate shall 
inherit in like manner as if born in the lifetime of the intestate ; 
but no right of inheritance shall accrue to any person other than 
the children or descendants of the intestate, unless they are in be- 
ing, and capable in law of taking as heirs at the time of the intes- 
tate's death. 

3. Children, and descendants of children of the half-blood, shall 
inherit the same as children and descendants of the whole blood, 
but collateral relations of the half-blood shall inherit only half the 
measure of collateral relatives of the whole blood, if there be any 
of the last named class living. 

4. Where any of the children of the intestate shall have re- 
ceived in his lifetime any real or personal estate, by way of ad- 
vancement, and the other heirs desire it to be charged to him, the 
probate judge shall cite the parties to appear before him, shall hear 
proof upon the subject, and shall determine the amount of such ad- 
vancement or advancements to be thus charged. 

5. The maintenance, education or supply of money to a child 
under the age of majority, without any view to apportion or settle- 
ment in life, shall not be deemed an advancement under section 
four. 

6. The alienage of the descendants shall not invalidate any title 
to real estate which shall descend from him or her. 

7. Illegitimate children shall inherit the same as those born in 
wedlock, if the parents subsequently intermarry, and such children 
be recognized after such intermarriage by the father to be his. 
Illegitimate children inherit from the mother, and the mother from 
the children. 

8. Divorces of husband and wife shall not affect the right of 
children personally together, to inherit their property. 



234 WYOMiNa. [Part 8. 

9. Probate judges and administrators of the estates of persons 
dying intestate within this Territory, shall apportion and distribute 
estates of intestates according to this Act. 

10. The rule of descent of all property of whatsoever kind or 
nature, real or personal, of any bastard or illegitimate person,- dy- 
ing intestate in this Territory, and leaving property and effects 
therein, shall be as follows, to wit : On the death of any such per- 
son intestate, his or her property, estate and effects shall descend 
to and vest in the widow,. or the surviving husband and children, as 
the property and effects of other persons in like cases. In case of 
the death of any such illegitimate person leaving no children, or de- 
scendants of a child or children, then the whole property and estate, 
rights, credits and effects shall descend to and vest in the widow or 
surviving husband. In case of any such illegitimate person leaving 
no widow, surviving husband, or descendants, then the property and 
estate of such person shall descend to and vest in the mother and 
her children, and their descendants ; to the mother one-half, and 
the other half to be equally divided between her children and their 
descendants, the descendants of a child taking the share of their 
deceased parent or ancestors. In case of the death of any such 
illegitimate person leaving no heirs as above provided, then the 
property and effects, of whatsoever kind or nature, shall pass to and 
vest in the next of kin to the mother of such illegitimate person, in 
the same manner as the estate of a legitimate person would, by law, 
pass to the next of kin. 

11. If any decedent leaves a widow residing in this Territory, in 
all cases she shall be allowed to have and retain as her sole and 
separate property one bed and bedding, wearing apparel for herself 
and family, two cows, her saddle and bridle, one horse, household 
furniture for herself and family, and also the same amount and spe- 
cies of property, real and personal, as is or may be by law exempt 
from execution. Said property shall be retained by the widow, 
and set apart to her by the executor or administrator, and shall in 
no case be subject to the payment of debts of the deceased. 

12. When an inventory shall have been made of the personal es- 
tate of any testator or intestate, the widow may relinquish her 
right to all of the specified articles of property allowed to her by 



Chap. 14.] WYOMING. 235 

the preceding section ; or in case the intestate shall not leave any 
or all of the articles specified, in either case she shall be entitled to 
other property, or the value of the same in money ; and it shall be 
the duty of the administrator or Court of probate to allow the value 
of the articles specified by law to be set apart to the widow of any 
intestate, to be allowed her in money, or other personal property, at 
her election.' 

13. The right of a widow to her separate property shall in no 
case be affected by her renouncing, or failing to renounce, the bene- 
fit of the provisions made for her in the will of her husband, or other- 
wise. 



Chapter XIV. 



DEPOSITIONS. 



No person is disqualified as a witness by reason of his interest 
in the event of suit. 

Depositions may be taken as soon as a case is commenced, and 
may be used when the witness does not reside in the county where 
the action is pending, or is absent therefrom ; or when from age or 
infirmity or imprisonment of the witness he is unable to attend 
Court, or is dead ; or when in any case oral examination is not 
required ; or in cases of appeal from Justices' Courts. 

They may be taken in or out of the Territory, before a justice 
of the peace, chancellor, or judge of any Court of record, notary 
public, mayor, or chief magistrate of any city or town corporate, 
a commissioner appointed by the Governor of the Territory, or any 
person authorized by special commission from the Territory. 

They may be taken in narrative form or by questions and 
answers, except in chancery cases, in which they must be taken on 
interrogatories and cross-interrogatories, settled before issuino- the 



236 WYOMING. [Part 8, 

commission. In law cases thev may be taken on notice or com- 
mission issued bj the clerk of the Court. 



Chapter XV. 

JUDICIAL EECORDS. 

The judicial records of another State must be proven in accord- 
ance with the provisions of the Act of Congress, except judgments 
of justices of the peace, whose proceedings may be authenticated 
by his own certificate, supported by the official certificate of the 
clerk of any Court of record in the county in which such justice 
resides, that- his signature is genuine, and that he is an acting 
justice of the peace of that county. 



Chapter XVI . 

ACKNOWLEDGMENTS. 

Deeds or mortgages, executed within this Territory, of lands or 
any interest in lands, shall be executed in the presence of two 
witnesses, who shall subscribe their names to the same as such ; and 
the person executing such deeds or mortgages may acknowledge 
the execution thereof before any judge or commissioner of a Court 
of record, or before any notary pubhc or justice of the peace 



Chap. 17.] WYOMING. 237 

within the Territory ; and the officer taking such acknowledgment 
shall indorse thereon a certificate of the acknowledgment thereof, 
and the true date of making the same, under his hand, and seal of 
office if there be one. 

If any such deed or mortgage shall be executed in any other 
State, Territory or District of the United States, such deed or 
mortgage may be executed according to the laws of such State, 
Territory or District, by any officer authorized by the laws of such 
State, Territory or District to take the acknowledgment of deeds 
or mortgages therein, or before any commissioner appointed by the 
Governor of this Territory for such purposes. 

In the cases provided for in the last preceding section, unless 
the acknowledgment be taken before a commissioner appointed by 
the Governor of this Territory for that purpose, such deed or 
mortgage shall have attached thereto a certificate of the clerk or 
other proper certifying officer of the Court of record of the county 
or district within which such acknowledgment was taken, under the 
seal of his office, that the person whose name is subscribed to the 
certificate of acknowledgment was, at the date thereof, such officer 
as he is therein represented to be, that he knows the signature of 
such person subscribed thereto to be genuine, and that the deed or 
mortgage is executed and acknowledged according to the laws of 
such State, Territory, or District. 



Chapter XVIL 



LIMITED PARTNERSHIPS. 



There is no statute concerning limited partnerships in the 
Territory. 



238 WYOMING. [Parts. 



Chapter XVIII. 

MARRIED WOMEN. 

Married women retain their property, real and personal, which 
they had at marriage, or which they acquire thereafter from any 
person other than their husband, in good faith, as their own, free 
from the husband's control, and free from liability for his debts. 
They may bargain, sell and convey personal property as if they 
were sole ; may make a will, be sued and sue as if they were 
sole ; may carry on any trade or business on their own account. 
The husband is not liable for the debts of the wife contracted before 
marriage. When judgment is rendered against both for the tort 
of the wife, the judgment must be satisfied first out of the property 
of the wife, if she have any. 



Chapter XIX. 

CHATTEL MORTGAGES. 

Chattel mortgages must be executed in the presence of two 
witnesses, and acknowledged before some one authorized to take 
acknowledgment of deeds, and filed in the office of the county re- 
corder of the county where the property is ; and it then becomes a 
lien on the property described therein for one year ; and if it so 
provide, the property mortgaged may be left in possession of the 
mortgagor. All goods and chattels may be mortgaged. 



Chap. 20.] WYOMING. 239 



Chapter XX. 

INTEREST AND USURY. 

The legal rate of interest is twelve per cent, per annum ; but 
any rate that may be agreed on is legal. Judgments draw twelve 
per cent, from the date of their rendition. 



Paet IX. 



MONTANA TERRITORY 



PREPARED EXPRESSLY FOR THIS WORK BY W. E. CULLEN, HELENA. 



Chapter I. 
COURTS, THEIR JURISDICTION AND TERMS:. 

The Courts of the Territory are a Supreme Court, District-, 
Courts, Probate Court, and Justices of the Peace. 

The Supreme Court has appellate jurisdiction only. 

The District Courts have original jurisdiction of all civil cases • 
where the amount in controversy exceeds fifty dollars, and of all 
felonies ; also appellate jurisdiction from the Probate and Justices' 
Courts. 

The Probate Court, in addition to probate matters, has jurisdic- 
tion in civil actions to the amount of five hundred dollars, except 
where the title or right to the possession of land is in question, and 
in chancery and divorce cases. The Probate Court also has juris- 
diction of such criminal cases arising under the laws of the Terri- 
tory as do not require the intervention of a grand jury. 

Justices of the Peace have jurisdiction where the title of land is 
not in dispute, and where the debt or sum claimed does not exceed 
one hundred dollars. 

The District Court, when sitting at Helena, Deer Lodge, and 

16 



242 



MONTANA. 



[Part 9. 



Bozeman, has the same jurisdiction as the Circuit and District 
Courts of the United States, and the first six days of each term at 
said places are appropriated to the trial of causes arising under the 
constitution and laws of the United States. 

Terms of District Courts, 1876. 



cotranc. 


COXTNTY SEAT. 


DIST. 


WHEN HELD. 


Beaverhead. . . 
Deer Lodge... 

Gallatin 

Jefferson 

Madison 

Meagher 

Meissoula 


Bannack 

Deer Lodge 

Bozeman 

Radersbnrg 

Virginia City... 
Diamond City... 

Meissoula 

Helena 


2d.... 
2d.... 
1st ... 
3d.... 
1st... 
3d.... 
2d.... 
3d,... 


First Monday in June, second Monday in October. 
Second Monday in April, first Monday in September. 
First Monday in May, second Monday in October. 
First Monday in April, first Monday in October. 
Third Monday in March, third Monday in September. 
Fourth Monday in May, fourth Monday in October. 
Fourth Monday in June, Second Monday in November. 






and first Monday in November. 



Terms of the Supreme Court are held at the capital, Helena, 
on first Monday in January and second Monday in August. 



Chapter II. 



TIME ALLOWED DEFENDANT TO ANSWER— PLACE 
OF TRIAL OF CIVIL ACTIONS. 



Time Allowed Defendant to Answer. 

Ten days if served in the county, twenty days if served outside 
the county but in the district ; forty days in all other cases. 

Place of Trial of Civil Actions. 
Actions for the recovery of real estate, or for injuries thereto. 



Chap. 3.] MONTANA. 243 

for partition thereof, or for foreclosure of mortgage thereon, must 
be tried in the county where the same is situated. 

Actions for the recovery of a penalty or forfeiture imposed by 
statute, or against a public officer, must be tried in the county 
where the cause arose. 

In all other cases the action is to be tried in the county in 
which the defendant may reside, or in the county where the plain- 
tiff resides and the defendant may be found. 



Chapter III. 

LIMITATION OF ACTIONS. 

Upon a judgment or decree of a United States Court, or of any 
State or Territory, ten years. 

Upon any contract, obligation or liability, founded upon an in- 
strument of writing, ten years. 

Actions for waste or trespass upon real property ; for a liability 
created by statute, other than a penalty or forfeiture ; for taking, 
detaining or injuring goods or chattels, and for reUef on the ground 
of fraud, must be commenced within three years. 

Actions against a sheriff, coroner or constable, for any act in his 
official capacity, must be commenced within two years. 

Actions upon an account, contract, obligation or, liability not 
grouu led upon an instrument of writing, must be commenced with- 
in five years. 

An action for a penalty or forfeiture given by statute, or for 
libel, slander, assault, battery or false imprisonment, must be com- 
menced within two years. 

Actions for relief not provided for, as above, must be com- 
menced within three years after the cause of action accrued. 



244 MONTANA. [Part 9. 

If the party against whom the action accrues is out of the 
Territory at the time, the statute does not run until his return, and 
if, after the action has accrued, he depart from the Territory, the 
time of his absence is not a part of the time limited for the com- 
mencement of an action. A part payment revives a debt which 
has been barred. No acknowledgment or promise is sufficient to 
take a ease out of the statute, unless it be in writing and signed by 
the party to be charged. A cause of action arising in any other 
State or Territory, and barred by the laws of such State or Terri- 
tory, cannot be maintained here. 



Chapter IV. 

ATTACHMENTS— ARRESTS IN CIVIL CASES. 

Attachments. 

An attachment will issue in all cases where an affidavit is made 
by or on behalf of the plaintiff, that the defendant is indebted to 
the plaintiff upon a contract for the payment of money, gold dust 
or other property then due, which is not secured by a mortgage, 
lien or pledge upon either real or personal property ; and upon 
giving an undertaking in double the amount of the debt sought to 
be recovered, if the same does not exceed in amount $1000, and 
in the amount sought to be recovered if over f 1000, conditioned 
that the plaintiff will pay all costs that may be awarded to the de- 
fendant, and all damages which he may sustain by reason of such at- 
tachment, if the defendant recovers judgment, or the Court finally 
decides that the plaintiff was not entitled to an attachment. 



Chap. 5.] MONTANA. ^ 245 

Arrests in Civil Cases. 

Arrest may be had in all cases of fraud, or when the action is 
for willful injury to person or character, or to property, knowing the 
property to belong to another. 



Chapter V. 

JUDGMENT LIENS, EXECUTIONS, EXEMPTIONS, SALE 
AND REDEMPTION. 

A judgment rendered by the District Court is a lien upon all the 
real estate of defendant in the county wherein it is docketed, and 
is such lien for the period of two years. 

Execution may be issued at any time within five years after the 
entry of the judgment. Executions may be issued to several 
counties at the same time. 

The following articles are exempt from execution : wearing ap- 
parel of judgment debtor and family, also all chairs, tables, desks, 
to the value of flOO; all necessary household and kitchen furni- 
ture, including stoves, stovepipes and stove furniture, beds, bedding 
and provisions, and fuel actually provided for use sufficient for one 
month ; and also one horse, two cows with their calves, two swine 
and fifty domestic fowls ; one sewing machine not exceeding the 
value of 'SlOO, in actual use by the debtor or his family ; also to a 
farmer, farming utensils, also two oxen or horses, or twa mules and 
their harness, two cows, one cart or wagon, and food for such ani- 
mals for one month; also all seed grain or vegetables actually re- 
served for planting. 

To a mechanic or artisan, tools or implements necessary to carry 
on his trade. 



246 MONTANA. [Part 9. 

To a physician, the instruments and chest necessary to the exer- 
cise of his profession, together with his library and one horse and 
vehicle. 

To an attorney at law, or a minister of the Gospel, their libraries. 

To a miner, his cabin, sluices, mining tools and appliances not to 
exceed in value |500 ; also two horses, mules or oxen, and food 
for the same for one month, and their harness, when necessary to 
be used for any windlass, derrick or pump. 

To a cartman, truckster, peddler, teamster or laborer, two horses, 
two mules, or two oxen and their harness, and one cart or wagon, 
by the use of which such person habitually earns his living. 

Also the earnings of the judgment debtor for thirty days' next 
preceding the levy of execution, when such earnings are necessary 
for the support of the debtor's family. 

A homestead not exceeding in value 12500 ; if agricultural land, 
not more than eighty acres ; if within the limit of a town or city or 
village, not more than one-fourth of an acre. 

The sheriff is required to give notice of sale as fqllows : by post- 
ing notice of the time and place of such sale in three public places 
of the township or city where the sale is to take place, for such 
time as may be reasonable in case of perishable property ; in case 
of other personal property, not less than five nor more than ten 
days. 

In case of real property, by posting a similar notice for twenty 
days, and publishing a copy thereof once a week for the same 
period in some newspaper published in the county, if there be one. 
In all sales of real property, where the estate is greater than the 
unexpired term of a two years' lease, the same may be redeemed 
within six months from such sale, by — first, the judgment debtor, 
second, a creditor having a lien by judgment or mortgage on the 
property sold, or some part thereof. 



Chaps. 6, 7.] MONTANA. 247 



Chapter VI. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTIONS. 

When an execution is returned unsatisfied, the judgment credit- 
or may compel the debtor to appear before a judge and answer 
concerning his property, and upon such hearing witnesses may be 
examined. If any property is found, the judge may order the same 
appUed on execution. 



Chapter YII. 

SECURITY FOR COSTS— APPEALS. 

Security for Costs. 

Security may be required in all cases where suit is brought by a 
non-resident ; and where such security is required, all proceedings 
are stayed, and the action will be dismissed unless an undertaking 
is filed in such amount as may be fixed by the Court within thirty 
days. Security may also be required of the plaintiff, where the de- 
fendant makes oath that the plaintiff is insolvent. 

Appeals. 

Same as in California. 



248 MONTANA. [Part 9. 

Chapter YIII. 

ESTATES OF DECEASED PERS0:NS— HOMESTEADS. 

Estates of Deceased Persons. 

Demands against the estate of a deceased person must be ex- 
hibited for allowance within two years after granting letters, or they 
will be barred. Any officer authorized to administer an oath may 
take proof of claims. There is no time limited for the settlement 
of an estate. 

Homesteads. 

Not exceeding in value $2500, to consist of not more than eighty 
acres of land ; or if within the limits of a town site, not to exceed 
one-fourth of an acre is exempt. 



Chapter IX. 

DEPOSITIONS— JUDICIAL RECORDS^ACKNOWLEDG- 

MENTS. 

Depositions. 
Same law as in California, from which our code was taken. 



Chap. 10.] MONTANA. 249 

Judicial Records 

Of another State or Territory are proved by the production of ex- 
emplified copies. 

Acknowledgments. 

Every conveyance affecting real estate must be in writing and 
acknowledged, or proved and certified. The following is a general 
form of acknowledgment, viz : 
Territory oe Montana, 



ss. 
County of- 

Be it remembered, that on this day of , 187 — , per- 
sonally appeared before the undersigned, a [title of office] within 

and for the county aforesaid, personally appearing, came 

to me, personally known to me to be the same person mentioned 
in and who executed the foregoing instrument, and he acknowledged 
to mo that he had so executed the same freely and voluntarily, 
and for the uses and purposes therein expressed. 

Witness my hand, etc. 

If a married woman is a party, the certificate must state that 
the officer examined her apart from and Avithout the hearing of 
her husband, and that she then acknowledged that she executed 
the same freely and voluntarily, without fear of or under compul- 
sion of her said husband, and that she did not wish to retract the 
execution of the same. 



Chapter X. 

LIMITED PARTNERSHIPS 

May be created by two or more persons who shall be responsible 
as general partners, and two or more persons who shall contribute 
to the common stock a specific sum in actual cash payments. 



250 MONTANA. [Part 9. 

The special partners not to be liable for any debt of the partner- 
ship. In order to create such partnership it is necessary that a 
certificate, stating the name of the partnership firm, the place of 
residence of each of the general and special partners, the amount 
of the capital which each special partner has contributed, the 
general nature of the business, the time when the partnership is to 
commence and when it is to terminate, shall be made, acknowledged 
and recorded in the office of the county recorder of the county in 
which the principal place of business of the partnership is located. 
Any false statement in such certificate subjects all parties to liability 
as general partners. 



Chapter XI. 

MARRIED WOMEN 



Are liable on their contracts made for benefit of or with reference to 
their separate property. They may become sole traders by filing 
a certificate in the county recorder's office, and conduct business as 
a femme sole. 



Chapter XII. 

CORPORATIONS— CHATTEL MORTGAGES— INTEREST. 

Corporations. 

There is no individual liability of stockholders for indebtedness 
of a corporation, beyond the amount of the unpaid stock which 
they hold. 



Chap. 12.] MONTANA. 251 



Chattel Mortgages. 

All personal property may be pledged or mortgaged, and such 
mortgages must be foreclosed promptly when due. No chattel 
mortgage can be made for a longer period than twelve months. 

Interest and Usury. 

The legal rate of interest is ten per cent., but any rate for which 
parties may contract is collectable. There is no usury law. 



Part X. 



WASHINGTON TERRITORY 



PREPARED EXPRESSLY FOR THIS WORK BY JAMES K. KEXNEDY, 
WALLA WALLA. 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The Territory is divided into three judicial districts, each having 
a judge, who together compose the Supreme Court. 

The Supreme Court has appellate jurisdiction only, and causes 
are removed to it from the District Courts by writs of error or 
appeals. 

The several District Courts have general common law and 
chancery jurisdiction, in all matters where the amount in contro- 
versy exceeds one hundred dollars. They have also general 
jurisdiction in causes arising under the laws of the United States, 
and in admiralty and bankruptcy. 

There is a Probate Court in each county, holding four terms 
each per annum, having statutory jurisdiction in all matters 
pertaining to decedents' estates, and the guardianship and estates 
of minors and insane persons. They have no common law juris- 
diction except such as is strictly necessary to carry out and enforce 
that defined by statute. 



254 WASHINGTON. [Part 10. 

Justices of the Peace have jurisdiction coextensive with the 
limits of their respective counties, over all causes arising on 
contract for the recovery of money only, when the sum claimed 
does not exceed one hundred dollars, and in actions for damages 
for injury to person or property, or for taking or detaining personal 
property, if the damages claimed do not exceed one hundred 
dollars ; also in actions on undertakings or bonds, when the penalty 
or amount claimed does not exceed one hundred dollars ; also in 
actions for the foreclosure of mortgages, or the enforcement of 
liens on personal property, when the debt secured does not exceed 
one hundred dollars; also in actions for damages for fraud and 
deceit in the sale, purchase, or exchange of personal property, 
when the damages claimed do not exceed one hundred dollars ; also 
in actions of forcible entry and detainer ; also in actions to try the 
right of possession to mining claims. They may also take and 
enter judgment on the confession of a defendant, or upon default 
for a failure to appear or answer. 



Chapter II. 

TERMS OF COURTS— WHEN AND WHEEE HELD. 

The Supreme Court holds one term in each year, at Olympia, 
commencing on the second Monday of July. 

The District Court of the first judicial district, Hon. S. C. 
Wingard, judge, is held for the counties of Walla Walla and 
Columbia, at Walla Walla City, on the first Monday of May and 
third Monday of October ; for the county of Yakima, at Yakima 
City, on the first Monday of October of each year ; for the 
counties of Stevens and Whitman, at Colfax, on the first Monday 
of June of each year. 



Chap. 3.] WASHINGTON. 255 

The District Court of the second judicial district, Hon. R. S. 
Green, judge, is held for the counties of Klickitat, Skamania and 
Clark, at Vancouver, on the third Monday of March and third 
Monday of November of each year ; for the counties of Cowlitz, 
Wahkiakum and Pacific, at Kalama, on the first Monday in 
January and the fourth Monday in June ; for the counties of 
Thurston, Lewis, Mason and Chehalis, at Olympia, on the first 
Monday in April and first ^[onday in December. 

The District Court of the third judicial district, Hon. J. R. 
Lewis, C. J., judge, is held for the county of Pierce, at Steilacoom, 
on the first Monday of January and first Monday of August; for 
the counties of King, Kitsap and Snohomish, at Seattle, on the 
fourth Monday of January and third Monday of August ; for the 
counties of Jefferson, Island, Whatcom, San Juan and Clallam, at 
Port Townsend, on the fourth Monday of February and fourth 
Monday of September. 

In addition to the above terms of Court, prescribed by Act of 
the Legislative Assembly, power is given to the judges of each dis- 
trict to appoint, by rule from time to time, two special terms in 
each year, at which to transact all business, except trials by jury, 
and the hearing causes on their merits. 

Terms of the Probate Courts are held at the county seat of each 
county on the fourth Mondays of January, April, July and 
October, of each year. 

Justices' Courts are always open for the transaction of business. 



Chapter III. 

COMMENCEMENT OF SUITS—TIME ALLOWED TO 

ANSWER. 

Actions in the District Courts are commenced by fifing the com- 
plaint with the clerk, and the issuing a summons thereon at any 



256 WASHINGTON. [Part 10. 

time within one year of such filing. The defendant is required to 
answer the complaint as follows : if served within the county where 
the action is brought, twenty days ; if served out of the county but 
in the district in which the action is brought, thirty days ; in all 
other cases, sixty days. If the defendant fails to appear and an- 
swer according to the requirements of the summons, the plaintiff is 
entitled to have the default entered, and judgment for the amount 
specified in the summons, or for the relief prayed for in the com- 
plaint. The complaint and all subsequent proceedings in an action, 
except a demurrer, must be verified by the party, (his agent or 
attorney, in the county where the action is brought) to the effect 
that he believes it to be true. All common law forms of pleadings, 
and all distinctions between law and equity as to form, are abolish- 
ed, and the code system adopted. 

In Probate Court, most of the business can be commenced, pre- 
liminary orders granted, and writs issued by the judge in vacation. 
Orders or decrees for the sale of real estate, the settlement of 
estates, and discharge of executors, administrators, or guardians, 
and final orders and decrees generally, must be heard and decided 
in term time. 

Actions are commenced in Justices' Courts by filing with the 
justice a complaint or account, verified by the party, his agent or 
attorney, to the effect that he believes it to be true, and the issuance 
of a summons or notice thereon. The summons or notice is re- 
turnable in not less than six, nor more than twenty days, from the 
filing the complaint. 



Chapter IV. 

PLACE OF TRIAL OF CIVIL ACTIONS. 

Actions for the recovery of the possession of, or for the fore- 
closure of a mortgage on, or in any wise affecting the title to real 



Chap. 5.] WASHINGTON. 257 

property, and all questions involving the right or title to personal 
property, or for the detention or injury to such property, shall be 
brought in the county in which the subject of the action or some 
part thereof is situated. 

Actions for a penalty or forfeiture imposed by statute, or against 
public officers, shall be tried in the county or district where the 
cause of action or some part thereof arose. 

Actions against corporations may be brought in any county where 
the corporation has an office for the transaction of business, or any 
person resides upon whom process against such corporation may- 
be served. In all other cases the action shall be commenced and 
tried in the district embracing the county in which the defendants; 
or either of them reside, or maybe served with process ; or if none 
of them reside in the Territory, the same may be tried in any dis- 
trict or county which the plaintiJBf may designate in his complaint* 



Chapter V. 



LIMITATION OF ACTIONS. 

The period prescribed for the limitation of actions, from the time 
the cause of action accrues, is as follows : 

For the recovery of real property, or the possession thereof, 
twenty years ; upon a judgment or decree of any Court of the 
United States, or of any State or Territory within, the United 
States, or upon a contract in writing or liability, express or implied, 
arising out of a written agreement, or for the rents and profits, or 
use and occupation of real estate, six years ; for waste or trespass 
upon real property, or for taking, detaining, or injuring personal 
property, including an action for the recovery thereof, or for any 
other injury to the person or rights of another not hereinafter 

17 



258 WASHINGTON. [Part 10. 

enumerated ; upon a contract or liability, express or implied, which 
is not in writing, and does not arise out of any written instrument ; 
for relief upon the ground of fraud, (the cause of action in such 
case not to be deemed to have accrued until the discovery by the 
aggrieved party of the facts constituting the fraud) against a min- 
isterial officer upon a liability incurred by the doing an act in his 
official capacity, or by the omission of an official duty, including the 
non-payment of money collected upon execution ; upon a statute for 
a penalty or forfeiture, and for seduction aud breach of marriage 
contract, three years ; for libel, slander, assault, assault and bat- 
tery and false imprisonment, actions upon a statute for a forfeiture 
or penalty to the Territory, two years ; against a sheriff or other 
officer, for the escape of a prisoner arrested or imprisoned on civil 
process, one year. 

When the cause of action arises in another State or Territory, 
between a resident of that State or Territory and of this Territory, 
the foregoing limitations apply. When the cause of action arises 
in another State or Territory between non-residents of this Terri- 
tory, and the same would be barred there by the lapse of time, it 
will be barred here. An action shall be deemed commenced as to 
each defendant when the complaint is filed. 



Chapter YI. 

ATTACHMENTS. 

The plaintiff, at the time of issuing the summons, or at any time 
thereafter, and before judgment, may have the property of the de- 
fendant attached as security for the satisfaction of such judgment 
as he may recover, whenever he or any one on his behalf shall make 
and file an affidavit that a cause of action exists against the de- 



Chap. 6.] WASiirxGTON. • 259 

fendant, and the grounds thereof, and that the defendant is either — 
first, a foreign corporation ; or second, that he is not a resident of 
this Territory, or has departed therefrom with intent to delay or de- 
fraud his creditors, or to avoid the service of process, or keeps 
himself concealed therein with like intent ; or third, that he has 
removed or is about to remove any of his property from the Ter- 
ritory with intent to delay or defraud his creditors ; or fourth,' tliat 
he has assigned, secreted or disposed of any of his property, or is 
about to assign, secrete or dispose of it with intent to delay or de- 
fraud his creditors ; or fifth, that the defendant has been guilty of a 
fraud in contracting the debt or incurring the obligation for which 
the action is brought. 

Before the writ issues the plaintiff must file with the cleik a 
bond, with one or more sureties, in a sum not less than one hun- 
dred dollars and equal to the amount for which the plaintiff demands 
judgment, to the effect that the plaintiff will pay all costs that may 
be adjadged to the defendant, and all damages which he may sus- 
tain by reason of the attachment, if the same be WTongful, oppres- 
sive, or without sufficient cause. AH property may be attached 
not by law exempt from execution, including debts owing to de- 
fendant. The defendant may have the property attached delivered 
to him by executing to the sheriff a bond, with surety approved by 
him, to the effect that such property shall be properly kept and de- 
livered upon demand, to be held on execution ; or that he will pay 
the appraised value thereof; or*the defendant may, before the time 
for answering expires, apply to the Court or judge for the discharge 
of the attachment, on the grounds that it was improperly or improvi- 
dently issued. 

Writs of attj^chment may be issued by justices of the peace, 
upon any of the foregoing grounds, except that the debt was con- 
tracted in fraud, and on the additional grounds that the defendant 
is a non-resident of the county, or is secretly leaving or has left the 
county, with the intent to hinder, delay, or defraud his creditors. 



260 WASSiyGTON. [Part 10. 



Chapter YII. 

ARREST IN CIVIL ACTIONS. 

The defendant, upon an order of the Court or judge of the Su- 
preme Court, may be arrested in the following cases, and no oth^r : 

1. In an action for the recovery of damages on a cause of action 
not arising out of contract, where the defendant is a non-resident of 
the Territory, or is about to remove therefrom, or where the action 
is for an injury to person or character, or for injuring or wrongfully 
taking, detaining, or converting property. 

2. In an action for a fine or penalty, or on a promise to marry, 
or for money received, or property embezzled or fraudulently mis- 
applied, or converted to his own use by a public officer, or by an 
attorney, or by an officer or agent of a corporation in the course of 
his employment as such, or by any factor, agent, broker, or other 
person in a fiduciary capacity, or for any misconduct or neglect in 
office, or in a professional employment. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property, or any part thereof,.has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the sheriff, with the intent that it should not be so found 
or taken, or with the intent to deprive the plaintiff of the benefit 
thereof. 

4. When the defendant has been guilty of fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

6. When the action is to prevent threatened injury to, or de- 
struction of, property, and the danger is imminent that such prop- 
erty will be destroyed, or its value impaired, to the injury of plain- 
tiff 

7. On the final judgment or order of any Court in the Territory, 



Chap. 8.] WASHINGTON. 261 

when the defendant having no property subject to execution, or not 
sufficient to satisfy the judgment, has money which he ought to ap- 
ply in payment upon such judgment, which he refuses to ap|)ly, 
with intent to defraud plaintiff"; or when he refuses to comply with 
the legal order of the Court, with intent to defraud the plaintiff. 

The Court or judge making the order shall first be satisfied by 
affidavit of the party, his agent or attorney, ond other proof in 
writing^ that one or more of the above causes exist. Before the 
order of arrest issues, the plaintiff, or some one in his behalf, shall 
file a bond with the clerk in such amount as the Court or judge 
may have fixed in the order, with sureties to the satisfaction of the 
clerk, conditioned to pay to the defendant all damages he shall 
suffer and all expenses he shall incur by reason of such arrest and 
imprisonment, if the order be vacated, or if the plaintiff fail to re-^ 
cover in his- action. The defendant may, on motion, apply to the 
Court to vacate the order of arrest on the ground of insufficiency 
of the proof, or he may show that the facts alleged are untrue, or 
he may give bail. 

The grounds for issuing a warrant of arrest by a justice of the 
peace are the same as above. 



Chapter VIII, 



JUDGMENTS AND JUDGMENT LIENS. 

In addition to judgments of non-suit and judgments upon the 
merits, either on trial by jury or by the Court, the plaintiff may 
have judgment by failure of the defendant to appear and answer, 
or upon the confession of judgment by defendant. A judgment in 
the Disti-ict Court is a direct lien on the real estate of the defend- 
ant in the county where the judgment is rendered for twenty days 



262 WASHINGTON. [Part 10. 

after the expiration of the term. The plaintiif, to continue the lien, 
must, at the expiration of said twenty days, file a transcript of the 
judgment in the office of the county auditor of any county v/here 
the real estate is situated, which lien shall continue for five years 
from the date of the judgment. 

To make a judgment in Justices' Courts a lien on real estate, 
the plaintiff must file a transcript of such judgment in the office of 
the clerk of the District Court, and file such transcript, certified by 
the clerk, in the office of the county auditor of the county where 
the real estate i-s situated. 



Chapter IX. 



EXECUTIONS, EXEMPTIONS, SALES, AND REDEMP- 
TIONS. 

The plaintiff may have execution on a judgment at any time 
within five years after its rendition ; if the period of five years 
shall have elapsed without an execution having been issued, none 
shall issue unless the creditor or his assignee shall file a motion 
with the clerk of the Court to issue an execution, verified in like 
manner as a complaint, and shall cause notice of such motion to be 
served on the judgment debtor in like manner and with like effect 
as a summons. The motion shall be tried as any other action. 
Upon hearing the motion, the Court may order that judgment be 
entered and docketed as other judgments. Executions require the 
sheriff to exliaust the personal property of the defendant, not 
exempt from execution, before levying on real estate. They can 
be issued to any sheriff in the Territory, when the defendant has 
property, by plaintiff, his agent or attorney, making an affidavit 
that the defendant has not sufficient property in the county where 



Chap. 9.] WASHINGTON. ' 263 

the execution issued, to satisfy the judgment, but that he has 
property subject to execution in such other county. Execution 
may be stayed by defendant on giving a bond to the opposite party 
in double the amount of the judgment and costs, with surety to the 
satisfaction of the clerk, conditioned to pay said judgment, interest, 
costs, and increased costs, at the expiration of the period of the 
stay, which is as follows : In the Supreme Court, on all sums under 
1500, thirty days ; on all sums over |500 and under $1500, sixty 
days ; on all sums over $1500, ninety days. In the District 
Court, on all sums under $300, two months ; on all sums over 
$300 and under $1000, five months ; on all sums over $1000, six 
months. In Justices' Courts, on any sum not exceeding twenty- 
five dollars, one month ; more than twenty-five dollars, two months. 



Exemptions. 

All property, real and personal, belonging to a married woman 
at the time of her marriage, and all which she may subsequently 
acquire in her own right, and all the personal earnings, and all the 
issues, rents, and profits of such real estate, shall not be liable to 
attachment or execution upon any liability or judgment against the 
husband, so long as she or any minor heir of her body shall be 
living. Every householder being the head of a family is entitled, 
as exempt from attachment and execution, to a homestead not 
exceeding in value the sum of one thousand dollars, while occupied 
as such by the owner thereof, or his or her family. The following 
property shall also be exempt from execution : All wearing apparel, 
private libraries, family pictures, and keepsakes ; to each house- 
holder one bed and bedding, and one additional bed and bedding 
for every two members of the family, and other household goods, 
utensils, and furniture not exceeding $150, coin, in value ; two 
cows and calves, five swine, two stands of bees, twenty-five 
domestic fowds, and provisions and fuel for the comfortable main- 
tenance of such householder and family for six months. To a 
farmer, one span of horses and harness, or two yoke of oxen, with 
yokes and chains, and one wagon ; also farming utensils, actually 
used about the farm, not exceedino; in value $200 in coin. To a 



264 WAsniNGTOX. [Part 10. 

mechanic, the tools of his trade, also material not exceeding in 
value 1500 coin. To a physician, his library not exceeding in 
value $500 coin ; also one horse and buggy, the instruments used 
in his practice, and medicines not exceeding in value $200 coin. 
To attorneys, clergymen, and other professional men, their libraries, 
not exceeding $500 coin value, and office furniture, fuel, and 
stationery, not exceeding $200 coin value. All firearms kept 
for the use of any person or family. To all persons, a canoe, skiff, 
or small boat, with its oars, sails and rigging, not exceeding $50 
coin. To a person engaged in lightering for his support, one or 
more lighters, barges, or scows, and a small boat, with oars, sails 
and rigging, not exceeding in the aggregate $250 coin value. To 
a teamster or drayman, his team : the word team meaning a span 
of horses, harness, and one wagon or dray ; a sufficient quantity of 
hay, grain or feed to keep the animals herein exempt for six months. 
No property shall be exempt from an execution issued on a ju'dg- 
ment for the price or any part of the price thereof. 

Sales. 

Personal property is sold by the sheriff upon ten days' notice of 
the time and place of such sale, posted in three public places of 
the county : real estate, by posting similar notices, particularly 
describing the property, for four weeks in three public places of 
the county where the property is to be sold, and publishing a copy 
thereof once a week, for the same period, in a newspaper of the 
county. All sales of property upon execution shall be by auction. 
Sales of personal property shall be in view' of the property, and of 
real estate, at the Court-house door. 

Redemption. 

Sales of real estate are confirmed at the next term of the District 
Court, and the defendant, or his successor in interest, or any person 
having a lien thereon, may redeem such real estate within six 
months after confirmation, by paying the amount, with two per cent, 
interest per month. 



Chaps. 10, 11.] WASHINGTON. • 265 



Chapter X. 



PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

The plaintiiF in proceedings supplementary to execution may 
upon a proper showing to the Court or judge, have an order re- 
quiring defendant to appear and answer as to any property which 
he may have subject to execution, and which ought to be apphed 
on the judgment ; or if it appears there is danger of the defendant 
absconding, the order may require his arrest, and upon being 
brought before the judge he may be ordered to enter into bond, with 
surety, that he will appear from time to time during such proceed- 
ings, and will not in the meantime dispose of any of his property 
subject to execution. Any person indebted to the defendant in a 
sum exceeding fifty dollars, may be required to appear and answer 
concerning the same. 



Chapter XI. 



SECURITY FOR COSTS. 



When the plaintiff resides out of the district or county, or is a 
foreign corporation, security for costs may be required by the de- 
fendant ; when required, all proceedings in the action shall be stay- 
ed until a bond, executed by two or more persons, be filed with the 
clerk, conditioned that they will pay such costs and charges as may 
be awarded against plaintiff, not exceeding the sum of ^200. 



266 . WASHINGTON. [Part 10. 



Chapter XII, 



APPEALS AND WRITS OF ERROR 

May be taken from the. District Courts to the Supreme Court of 
the Territory within six months from the date of the order, judg- 
ment or decree appealed from, and not afterwards. To stay pro- 
ceedings in the Court below, the appellant or plaintiff in error 
must file a bond with sureties to the satisfaction of the clerk. 
Appeals from the Probate Court to the District Court must be 
taken within sixty days from the rendition of the decision Or judg- 
ment, and from Justices of the Peace to the District Court, within 
twenty days from the date of the judgment. The party appealing 
shall execute and file with the justice a bond with one or more 
sureties in the sum of -flOO, to the effect that the appellant will 
pay all costs ; or if a stay of proceedings be claimed, a bond with 
two or more sureties in a sum equal l^o twice the amount of the 
judgment. 



Chapter XIII. 

ESTATES OF DECEASED PERSONS. 

Claims against decedents' estates must be filed within one year 
from the publication of notice to creditors. The Court may, how- 
ever, in its discretion, order a shorter time in any particular case, 
but not less than six months from the date of notice. To entitle a 
claim to be filed, it must be supported by the affidavit of the claim- 
ant that the amount is justly due^ that no payments have been 



Chap. 14.] WASHINGTON. 267 

made thereon, and that there are no offsets to the same to the 
knowledge of the claimant. The oath may be taken before any 
officer authorized to administer oaths, and in a neighboring State 
or Territory, the oath, if not administered by a commissioner for 
the Territory, must be properly authenticated, the certificate stating 
that such person is authorized to administer oaths, and that his sig- 
nature is genuine, with the seal of a Court of record to such 
certificate. Jhe claim being thus proved, must be presented to 
the administrator for his allowance ; if he allow it, it is presented to 
the probate judge for his allowance, when, if allowed by him, the 
same is filed. If either the administrator or probate judge reject 
it, the party has three months within which to bring suit on it. 
Estates must be settled within one year, unless further time be 
granted by the Court. 



Chapter XIV, 



HOMESTEADS. 

See Exemptions'. A honaestead may consist of a house and lot, 
or lots, in any city, or of a farm of any number of acres, so that 
their value does not exceed 11000. To entitle a person to a 
homestead, he or she shall cause the word " homestead " to be en- 
tered of record in the margin of his or her recorded title to the 
same. 



268 WASHINGTON. [Part IC. 



Chapter XV. 



DEPOSITIONS 



Of witnesses residing in the Territory may be taken, when the 
witness resides out of the district, and more than twenty miles from 
the place of trial ; or when the witness is about to leave the district, 
and go more than twenty miles from the place of trial ; or when he 
is sick, infirm, or aged, so as to make it probable he will not be able 
to attend the trial, before any judge of the District Court, justice of 
the peace, clerk of the Supreme or District Courts, mayor of a city 
or notary public, upon serving on the adverse party, or his attor- 
ney, three days' notice of the time and place of examination, and 
one day for every ten miles of the distance of the place of examina- 
tion from the residence of the person to whom notice is given. The 
deposition must be read to the witness and signed by him, an^ cer- 
tified by the officer taking the same. The deposition of a witness 
out of the Territory, but residing within a hundred miles of the 
place of holding Court, may be taken under a notice in the same 
manner, and before like character of officers as above. In all other 
cases, the deposition of a witness out of the Territory shall be taken 
upon a commission by the clerk, under the seal of the Court, upon 
the order of the Court or a judge thereof, upon giving to the oppo- 
site party or his attorney ten days' previous notice in writing, to- 
gether with a copy of the interrogatories that may be put to the 
witness. 



Chaps. 16, 17.] WASHINGTON. 269 



Chapter XVI. 

JUDICIAL RECORDS OF OTHER STATES, HOW 
PROVED. 

The records and proceedings of any Court of the United States, 
or any State or Territory, shall be admissible in evidence in all cases 
in Washington Territory, when authenticated by the attestation of 
the clerk, prothonotary, or other officer having charge of the records 
of such Court, with the seal of such Court annexed. 



Chapter XVII. 



ACKNOWLEDGMENTS. 

All deeds aifecting the title to real estate, or of any interest 
therein, and all contracts creating or evidencing any encumbrance 
on real estate, shall be by deed. All deeds must be acknowledged 
before one of the following officers, if made in the Territory : a 
judge of the Supreme Court, a judge of the Probate Court, a jus- 
tice of the peace, a county auditor, a clerk or a regularly appointed 
deputy clerk of the District or Supreme Court, or a notary public, 
duly qualified. If made out of the Territory, but in the United 
States, they may be acknowledged before any person authorized to 
take acknowledgments of deeds by the law^ of the State or Territory 
■wherein the acknowledgment is taken, or before any commissioner 
appointed by the Gov^ernor of Washington Territory for such pur- 
pose. Unless such acknowledgment l^e taken before a commissioner, 



270 WASHINGTON. [Part 10. 

such deed shall have attached thereto a certificate of the clerk or 
other proper certifying officer of a Coart of record of the county or 
district within which the achnowledgment was taken, under the seal 
of his office, that the person whose name is subscribed to the cer- 
tificate of acknowledgment was, at the 'date thereof, such officer as 
he is therein represented to be ; that he is authorized by law to take 
acknowledgments of d^eds ; and that he believes the signature of 
the person subscribed thereto to be genuine. If made in a foreign 
country, out of the United States, they shall be acknowledged or 
proved by two witnesses before any minister plenipotentiary, charge 
d'affaires^ consul, " general consul," vice-consul, or commercial 
agent appointed by the government of the United States to any 
foreign country, or the proper officer of any Court of such country, 
or the mayor or other chief magistrate of any city, town, or corpo- 
ration therein. Such officer shall make and sign officially a cer- 
tificate of acknowledgment, or of the proof by two witnesses, as the 
case may be, which shall be annexed to the deed. 

There are no particular requisites of an acknowledgment, except 
in case of a married woman. She shall not be bound by any deed 
affecting her own real estate or any interest in real estate, unless 
she shall be joined in the conveyance by her husband, and shall, 
upon an examination by the officer taking the acknowledgment, 
separate and apart from her husband, acknowledge that she did 
voluntarily, of her own free will, and without the fear of or coercion 
from her husband, execute the deed ; and the officer shall make 
knowm to her the contents of the deed, and shall certify that he has 
made known to her its contents, and examined her separate and 
apart from her husband, as is above provided. In case the hus- 
band and wife mortgage the homestead, the officer shall certify 
that she did freely and voluntarily, separate and apart from her 
husband, sign and acknowledge said mortgage, and the officer taking 
the acknowledgment shall fully apprise her of her rights and the 
effect of signing such mortgage. 



Chaps. 18-20.] WASHINGTON. 271 

Chapter XVIII. 

LIMITED PARTNERSHIPS. 

There is no Law of limited partnerships in this Territory. The 
liabiUty of partners is unrestricted. 



Chapter XIX. 

MARRIED WOMEN 

Cannot become sole traders in this Territory. All property owned 
by the wife at the time of her marriage, and that acquired after- 
wards by gift, bequest, devise or descent, is her separate property, 
but is liable for her husband's debts, unless she has a recorded in- 
ventory of the same in the office of the county auditor of the county 
where the property is situated. The wife can make no contract in 
her own right, except in particular cases affecting her separate 
property. 



Chapter XX. 



CORPORATIONS. 



Each and every stockholder shall be personally liable to the 
creditors of the company to the amount of what remains unj^^aid 
on his subscription to the capital stocky and not otherwise. 



272 WASHINGTON. ' [Part 10. 



Chapter XXI. 

CHATTEL MORTGAGES 

May be made upon locomotives, engines, and the other rolling 
stock of a railroad ; steam machinery and machinery used by ma- 
chinists, foundrymen, and mechanics ; steamboat engines and boil- 
ers ; - mining machinery ; printing presses and material ; profes- 
sional libraries ; instruments of a physician, surgeon, or dentist ; 
upholstery and furniture used in hotels or boarding-houses, when 
mortgaged to secure the purchase money of the articles mortgaged ; 
growing crops ; vessels of more than five tons burden. The mort- 
gage must be accompanied by the affidavit of all the parties 
thereto that it is made in good faith, and without any design to 
hinder, delay, or defraud creditors. It must be acknowledged or 
proved, certified, and recorded in the same manner as deeds to 
real estate. It must be recorded in the office of the county audi- 
tor where the mortgagor resides, and also of the county in which 
the property mortgaged is situated, or to which it may be removed, 
and must be recorded in books kept for chattel mortgages exclu- 
sively. 



Chapter XXII. 



INTEREST. 



The legal rate of interest is ten per cent, per annum, in the 
absence of any contract in writing, fixing a different rate. Parties 
may contract in writing for any rate of interest that they may 
agree upon. 



Part XI. 



ARIZONA TERRITORY 



Chapter I. 

COURTS AND THEIR JURISDICTION. 

The following are the Courts of justice for the Territory : 
1. The Supreme Court. 2. The District Courts. 3. The 
Probate Courts. 4. The Justices' Courts. 

The Supreme Court has appellate jurisdiction in all cases wherein 
the legality of any tax, toll, impost, or municipal fine is in question. 
It also has jurisdiction to review upon appeal- 
First. A judgment in action or proceeding commenced in a Dis- 
trict Court, or brought into that Court from another Court, where 
the matter in di&pute exceeds one hundred dollars, or when the 
possession of, or title to lands or tenements ^is in controversy ; and 
to review upon the appeal from such judgment any intermediate or 
collateral order of the Court or judge at chambers, involving the 
merits and necessarily affecting the judgment. 

Second. An order granting or refusing a new trial, sustaining or 
overruling a demurrer, or affecting a substantial right in an action 
or proceeding. 

The District Courts have jurisdiction as follows : 

Original jurisdiction in all civil cases where the amount exceeds 

18 



274 ARIZONA. [Part 11. 

one hundred dollars, exclusive of interest, and in cases involving 
the title or possession of real property. 

Appellate jurisdiction in Justice Court actions, and orders of 
judgments of the Probate Courts in certain cases. 

The Probate Courts have jurisdiction of estates of deceased 
persons. 

Justices' Courts have jurisdiction as follows : 

1. Of an action arising on contract for the recovery of money 
only, if the sum claimed does not exceed three hundred dollars. 

2. Of an action for damages for injury to the person, or for 
taking or detaining personal property, or for injuring real or per- 
sonal property, if the damages claimed do not exceed three hun- 
dred dollars. 

3. Of an action upon a bond conditioned for the payment of 
money not exceeding three hundred dollars, though the peaalty 
exceed that sum, the judgment to be .given for the sum actually 
due ; when the payments are to be made by installments, an action 
may be brought for each installment as it becomes due. 

4. Of an action for the foreclosure of any mortgage, or the en- 
forcement of any lien on personal property, where the debt secured 
does not exceed three hundred dollars. 

5. Of an action, to recover personal property, when the value of 
such personal property does not exceed three hundred'doUars. 

'Their jurisdiction does not extend to civil actions in which the 
title* to real property is brought in question. 



Chapter II. 

TERMS OF COUETS, WHEN AND WHERE HELD. 

The Supreme Court is held at Tucson, commencing on the first 
Monday in January of each year. 

The District Courts in the several counties are held as follows : 



Chap. 3.] * ARIZONA. 275 

Pima Count}', on the second Monday of February and first Mon- 
day in August, of each year. 

Yuma County, on the third Monday of March and first Monday 
of December, in each year. 

Yavapai County, on the first Monday of May and first Monday 
of October, in each year. 

Maricopa County, on the first Monday of April and first Mon- 
day in September, of each year. 

Moliave County, on the first Monday of June and the second 
Monday in November, of each year. 

Pinal County, on the first Monday of June, in each year. 

District Court is held at the county seat of each county. 

Probate Court is held at the county seat of each county, on the 
first Monday of January, April, July and October, in each year, 
and the judge may hold such adjourned or special terms as he 
thinks proper. 

Justices' Courts are always open for the transaction of business. 



Chapter III. 

COMMENCEMENT OF SUITS. 

Civil actions are commenced by filing a complaint with the 
Court or justice, and issuing a summons thereon. 

The defendant is required to answer the complaint in District 
Court actions as follows : 

1. If the defendant is served within the county in which the ac- 
tion is brought — twenty days. 

2. If the defendant is served out of the county, but in the dis- 
trict in which the action is brought — thirty days. 

3. In all other cases— forty days. 

Where personal service cannot be had, by reason of the defend- 



276 ARIZONA. ■ [Part 11. 

ant being out of the Territory, or where he conceals himself to avoid 
service of process, service is made hy publication, upon an order 
made bj the judge or justice of the peace. 

Ill District Court actions the order shall direct the publication to 
be made in some newspaper to be designated as most likely to give 
notice to the dfefendant ; the last of such insertions to be sixty 
days from the j5rst ; the order prescribes the time for publication. 
In Justice Court actions the publication shall be once a week for 
at least four weeks, and the justice shall issue a new summons re- 
turnable in not less than sixty, nor more than seventy daj^s from its 
date. 

In Justice Court actions the time mentioned in the summons 
for the appearance of the defendant and the time of service shall 
be as follows : 

1. When the summons is accompanied by an order to arresfcthe 
defendant, it shall be returnable immediately. 

2. When the defendant is not a resident of the county, it shall 
be returnable not more than two days from its date, and shall be 
served at least one day before the time for appearance. 

3. In all other cases it shall be returnable in not less than six nor 
more than ten days from its date, and shall be served at least four 
days before the time for appearance. 



Chapter IV. 

PLACE OF TPvIAL OF CIVIL ACTIONS. 

Actions for the following causes shall be tried in the county in 
which the subject of the action, or sbme part thereof, is situated : 

1. For the recovery of real property, or of an estate or interest 
therein, or for the determination in any form of such right or in- 
terest, and for injuries to real property. 



Chap. 4.] ARIZONA. 277 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property. 
Actions for the following causes shall be tried in the county where 

the cause, or some part thereof, arose : 

1. For the recovery of a penalty or forfeiture imposed by statute. 

2. Against a public officer. 

In other cases the action shall be tried in the county in which 
the parties, or some of them, reside, at the commencement of the 
action, or the defendant may be found ; or if none of the parties 
reside in the Territory, the same may be tried in any county which 
the plaintiif may designate in his complaint. 

The Court may, on motion, change the place of trial. 

1. When the county designated in the complaint is not the 
proper county. 

2. When there is reason to believe that an impartial trial cannot 
be had therein. 

3. When the convenience of witnesses and the ends of justice 
would be promoted by the change. 

4. When from any cause the judge is disqualified from acting in 
the action. 

No person shall be held to answer to any summons issued against 
him from a Justice's Court in a civil action, in any precinct other 
than the one in which he or the plaintiff shall reside, except in the 
cases following : 

1. Where there shall be no Justice's Court for the precinct or 
village in which the defendant or plaintiff may reside, or no justice 
competent to act in the case. 

2. When two or more persons shall be jointly or jointly and sev- 
erally bound in any debt or contract, or otherwise jointly liable in 
the same action, and reside in different precincts of the same coun- 
ty, or in different counties,- the plaintiff may prosecute his action in 
a Jus'ica's Court of the precinct or county in which any of the 
debtors or other persons liable may reside. 

3. In case of injury to the person, or to real and personal prop- 
erty, the plaintiff may prosecute his action in the precinct where 
the injury was committed, or where the defendant may be found. 

4. Where personal property, unjustly taken or detained, is 



278 ARIZONA. [Part 11. 

claimed, or damages therefor are claimed, the plaintiff may bring 
his action in any precinct or county in which the property may be 
found, or in which the property was taken. 

5. When the defendant is a non-resident of the county, he may 
be sued in any precinct, village or city wherein he may be foiind. 

6. When a person has contracted to perform any obligation at a 
particular place, and resides in another, he may be sued in the 
precinct in which such obligation is to be performed or in which he 
resides. 

7. When the foreclosure of a mortgage, or the enforcement of a 
lien upon personal property, is saug'it by the action, the plaintiff 
may sue in the precinct, village or city where the property is situ- 
ated. 



Chapter V. 

LIMITATION OF ACTIONS. 

The periods prescribed for the commencement of actions are as 
follows : 

Within five years — An action for the recovery of real property 
or the possession thereof; an action upon a judgment or decree of 
any Court of the United States, or of any State or Territory with- 
in the United States. 

Within four years — An action upon any contract, obligation, or 
liability founded upon an instrument of writing. 

Within three years — An action for trespass upon real property ; 
an action for taking, detaining or injuring any goods or chattels, in- 
cluding actions for the specific recovery of personal property ; an 
action for relief on the ground of fraud, the cause of action in such 
case not to be deemed to have accrued until the discovery by the 
aggrieved party of the facts constituting the f^aud. 



Chap. 5.] • ARIZONA. , 279 

Within two years — An action upon a contract, obligation or lia- 
bility, not founded upon an instrument of writing ; also, an action 
against a sheriff, coroner, or constable, upon the liability incurred 
by the doing of an act in his official capacity, and in virtue of his 
office, or by the omission of an official duty, including the non- 
payment of money collected upon an execution. The above does 
not apply to open accounts for goods, wares and merchandise sold 
and delivered, nor to an action for an escape. 

Within one year — An action for libel, slander, assault, battery, 
or false imprisonment ; an action against a sheriff or other officer 
for the escape of a prisoner arrested on civil process ; an action on 
an open account for goods, wares and merchandise sold and de- 
livered. 

The statute begins to run from the time the cause of action ac- 
crued. 

Part payment does not prevent the statute running ; but in 
an action brought to recover a balance due upon a mutual, open ac- 
count, where there have been reciprocal demands between the 
parties, the cause of action shall be deemed to have accrued from 
the time of the last item proved in the account on either side. 

An action upon a contract, obligation or liability for the payment 
of money, founded upon an instrument of writing, executed out of 
this Territory, can only be commenced as follows : 

First. Within one year, when more than two and less than five 
years have elapsed since the cause of action accrued. 

Second. Within six months, when more than five years have 
elapsed since the cause of action accrued. 

When the cause of action has arisen in another State, Territory, 
or foreign country, and is there outlawed, no action will lie in this 
Territory. If when the cause of action accrues against a person, he 
is out of the Territory, the action may be C( mmenced within the 
term herein limited, after his return to the Territory ; and if after 
the cause of action accrues he departs from the Territory, the time 
of his absence shall not be part of the time limited for the com- 
mencement of the action. 



280 ARIZONA.. [Part 11, 



Chapter VI. 

ATTACHMENTS. 

Attachments in District Court actions can onlj be issued : 

1. In an action upon a contract, express or implied, for the 
direct payment of money, and which is not secured by a mortgage 
upon real or personal property. 

2. fn an action upon a contract, express or implied, against a 
defendant not residing in this Territory. 

Before issuing the writ of attachment, an affidavit on the patt 
of the plaintiff must be filed, showing : 

That the defendant is indebted to the plaintiff (specifying the 
amount of the indebtedness over and above all legal set-offs or 
counter claims) upon a contract, express or implied, for the direct 
payment of money, and that such contract was made or is payable 
in the Territory, and that the payment of the same has not been 
secured by any mortgage on real or personal property, and 
showing also the existence of either of the following causes : 

1. That the defendant is not a resident of this Territory. 

2. That he is about to remove his property and effects beyond 
the limits of this Territory. 

3. That he has absconded from his usual place of abode in this 
Territory, so that the ordinary process of law cannot be served 
upon him. 

4. That he is about fraudulently to conceal or make away with 
his property and effects, so as to defraud, hinder, or delay his 
creditors. 

5. That he has fraudulently concealed or made away with his 
property and effects, so as to defraud, hinder, or delay his creditors. 

6. That he is about fraudulently to convey, assign, or dispose of 
his property, so as to defraud, hinder, or delay his creditors. 

7. That he has fraudulently conveyed, assigned, and disposed of 
his property, to defraud, hinder, or delay his creditors. 

8. That the defendant is a non-resident corporate body. 



Chap. 7.] ARIZONA. 281 

9. That he is about to remove from this Territory to avoid the 
ordinary process of law. 

A written undertaking is required on behalf of the plaintiff, in 
a sum not less than double the amount claimed, with sufficient 
sareties, to the effect that if the defendant recover judgment the 
plaintifif will pay all costs awarded the defendant, and all damages 
which he may sustain by reason of the attachment, not exceeding 
the amount specified in the undertaking. 

In Justices' Courts, an attachment may be issued in an action 
upon a contract, express or implied, for the direct payment of 
money, which contract is made or is payable in this Territory, and 
is not secured by a mortgage upon real or personal property. 

Upon filing with the justice an affidavit, on the part of the 
plaintiff, setting forth the above facts, and the amount of such 
indebtedness over and above all legal set-offs and counter claims ; 
and upon the filing of an undertaking on the part of the plaintiff, 
with two. or more sufficient sureties, to the effect that if the defend- 
ant recover judgment the plaintiff will pay all costs awarded the 
defendant, and all damages which he may sustain by reason of the 
attachment, the writ shall issue. 



Chapter VII. 

AEREST IN CIVIL ACTIONS. 

The defendant may be arrested in the following cases : 
1. In an action for the recovery of money or damages, in a cause 
of action arising upon contract, express or impHed, when the defend- 
ant is about to depart from the Territory with intent to defraud his 
creditors ; or when the action is for willful injury to person, to char- 
acter, or to property known to belong to another. 



282 ARIZONA. [Part 11. 

2. In an action for a fine or penalty, or for money or property 
embezzled, or fraudulently misapplied, or converted to his own use 
by a public officer, or an officer of a corporation, or an attorney, 
factor, broker, agent or clerk, in the course of his employment as 
such, or by any other person in a fiduciary capacity, or for miscon- 
duct or neglect in office, or in a professional employment, or for a 
willful violation of duty. 

3. In an action to recover the possession of personal property 
unjustly detained, when the property, or any part thereof, has been 
concealed, removed, or disposed of, so that it cannot be found or 
taken by the officer. 

4. When the defendant has been guilty of a fraud in contracting 
the debt or incurring the obligation for which the action is brought, 
or in concealing or disposing of the property, for the taking, deten- 
tion, or conversion of which the action is brought. 

5. When the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

An affidavit is required on behalf of the plaintiff, setting forth 
the grounds of arrest, and also an undertaking with sufficient sure- 
ties, in an amount of at least five hundred dollars. 



Chapter YIII. 

JUDGMENTS AND JUDGMENT LIENS. 

A judgment is the final determination of the rights of the parties 
in an action or proceeding. 

Immediately upon the docketing of a judgment it becomes a 
lien upon .all the real estate of the judgment debtor not exempt 
from execution in the county, owned by him at the time, or which 
he may afterwards acquire, until the lien expires. The lien con- 



Chap. 9.] ARIZONA. 283 

tinues two years. A transcript of the original docket, certified by 
the clerk, may be filed with the recorder of any other county, and 
thereby constitute a lien upon the lands of the judgment debtor in 
such county. 



Chapter IX.. 



EXECUTIONS, EXEMPTIONS, SALE, AND REDEMP- 
TION. 

Execution may be issued at any time within five years after the 
entry of judgment. Until a levy is made, property is not affected 
by execution. 

The following property is exempt from execution : 

1. The homestead, consisting of a quantity of land, together 
■with the dwelling house thereon and its appurtenances, and the 
water rights and privileges pertaining thereto sufficient to irrigate 
the land, not exceeding in value the sum of five thousand dollars, 
allowed to the head of a family. The homestead may be set apart 
after execution levied. * 

2. All spinning-wheels, weaving-looms with the apparatus, and 
stoves put up and kept for use in any dwelling-house. 

3. A seat, pew, or slip occupied by such person or family in any 
house or place of public worship. 

4. All cemeteries, tombs, and rights of burial, while in use as 
repositories of the dead. 

5. All arms and accoutrements kept for use ; all wearing ap- 
parel of every person or family. 

6. The library and school books of every individual and family, 
not exceeding one hundred and fifty dollars, and all family pictures. 

7. To each householder ten goats or sheep, with their fleeces, 
and the yarn or cloth manufactured from the same ; two cows, five 



284 ARIZONA. [Part 11. 

swine, and provisions and fuel for the comfortable subsistence 
such household and family for six months. 

8. To each householder, all household goods, furniture and uten- 
sils, not exceeding in value six hundred dollars. 

9. The tools, implements, materials, stock, apparatus, team,"ve- 
hi*cle, horses, harness, or other things to enable any person to carry 
on the profession, trade, occupation or business in which he is wholly 
or principally engaged, not exceeding in value six hundred dollars. 

10. One sewing machine and one musical instrument. 

11. A sufficient quantity of hay, grain, feed, and roots for prop- 
erly keeping the above named animals three months. 

An execution may be made returnable in not less than ten nor 
more than sixty days after its receipt by the sheriflf. 
Notice of sale must be given as follows : 

1. In case of perishable property, a reasonable time. 

2. In case of personal property, not less than five nor more than 
ten days. 

3. In case of real property, twenty days. 

Upon the sale of real property, when the estate is less than a 
freehold of two years unexpired term, the sale shall be absolute. 
In all other cases, the real property is subject to redemption within 
six months after the sale, upon paying to the purchaser the amount 
of the purchase, with eighteen per cent, in addition, and all taxes 
or assessments paid by the purchaser. 



Chapter X. 

PROCEEDINGS SUPPLEMENTARY TO EXECUTION. 

When an execution is returned unsatisfied in whole or in part, 
the judgment creditor, at anytime after such return is made, is en- 
titled to an order from the judge of the Court, requiring such jadg- 



Chap. 11.] ARIZONA. 285 

ment debtor to appear and answer concerning his property before 
such judge or a referee appointed. 



Chapter XI. 

ESTATES OF DECEASED PERSONS. 

Immediately after the appointment of the executor or adminis- 
trator, he shall give notice through a newspaper published in the 
county, if there be one, and if not, then in such newspaper desig- 
nated by the Court, requiring all persons having claims against the 
deceased to present them, with the necessary vouchers, within ten 
months after publication of the notice. If a claim be not presented 
within the ten months, it shall be forever barred ; however, if it be 

•not then due or is contingent, it may be presented within ten 
months after it shall become due or absolute ; and when it shall be 
made to appear by the affidavit of the claimant, to the satisfaction 
of the executor or administrator, and the probate judge, that the 
claimant had no notice by reason of being out of the Territory, it 
may be presented at any time before a decree of distribution is en- 
tered. Every claim presented to the executor or administrator 
shall be supported by the affidavit of the claimant, that the amount 
is justly due, that no payments have been made thereon, and that 
there are no offsets to the same to the knowledge of the claimant 
or other affiant ; provided^ that when the affidavit is. made by any 
other person than the claimant, he shall set forth in the affidavit the 
reason it is not made by the claimant. 

The affidavit may be sw^orn to before any officer authorized to 

•take oaths. 

When a claim is presented and allowed by the executor or ad- 
ministrator, it shall then be presented to the probate judge for. his 



286 ARIZONA. [Part 11. 

approval, and within thirty days thereafter filed with the Probate 
Court. 

If a claim be founded upon a bond, note, or other instrument, 
the original instrument shall be presented. If the claim be secured 
by a mortgage or other lien, such mortgage or other evidence of 
liens shall be attached to the claim, and filed therewith, unless the 
same be recorded in the office of the recorder of the county in 
which the land lies, in which case it shall be sufficient to describe 
the mortgage or lien, and refer to the date, volume and page of its 
•record. In all cases the claimant may withdraw his claim from 
file on leaving a certified copy, with a receipt endorsed thereon by 
himself or agent. 

After a claim is rejected, suit must be brought thereon within 
three months or it is forever barred ; if it be not then due, suit mast 
be brought within three months from the time it falls due. An 
outlawed claim must not be allowed. 

When a judgment has been rendered against the testator or in- 
testate in his life-time, no execution shall issue thereon after his 
death ; but a certified copy of such judgment shall be presented to 
the executor or administrator, and be allowed, and filed and re- 
jected, as any other claim, but need not be supported by the affij 
davit of the claimant; and if justly due and unsatisfied, shall be 
paid in due course of administration : provided^ however, that if the 
execution shall have been actually levied upon any property of the 
deceased, the same may be sold for the satisfaction thereof, and 
the officer making the sale shall account to the executor or admin- 
istrator for any surplus in his hands. The executor or adminis- 
trator may, however, require the affidavit of the claimant, or other 
satisfactory proof, that the judgment, or any portion thereof, is 
justly due and unsatisfied. 



Chaps. 12, 13.] ARIZONA. 287 



Chapter XII. 

AFFIDAVITS AND DEPOSITIONS. 

An affidavit taken in another State or Territory, to be used in 
this Territory, shall be taken before a commissioner appointed by 
the Governor of this Territory to take affidavits and depositions in 
such State or Territory, or before any judge, or notary public, or 
clerk of a Court having a seal ; when taken before a judge the 
genuineness, of the judge's signature, the existence of the Court, 
and the fact that such judge is a member thereof, shall be cer- 
tified by the clerk of the Court under the seal thereof. 

The deposition of a witness out of the Territory may be taken 
in an action at any time after the service of the summons or the 
appearance of the defendant. It shall be taken under a commission 
issued from the Court under the seal of such Court. It shall be 
issued to a person agreed upon by the parties, or if they do not 
agree, to any judge or justice of the peace selected by the officer 
granting the commission, or to a commissioner appointed hj the 
Governor of this Territory to take affidavits and depositions. 'J'he 
deposition must be returned in a sealed envelope, directed to the 
clerk or other person designated or agreed upon, by mail or other 
usual channel of conveyance. 



Chapter XIII. 

ACKNOWLEDGMENTS. 

The proof or acknowledgment of every conveyance affecting any 
real estate shall be taken by some one of the following officers : 
1. If acknowledged or proved within this Territory, by some 



288 ARIZONA. [Part 11. 

judge or clerk of a Court having a seal, or some notary public, or 
justice of the peace of the proper county. 

2. If acknowledged or proved without this Territory, and with- 
in the United States, by some judge or clerk of any Court of .the 
United State's, or of any State or Territory having a seal, or by 
any commissioner appointed by the Governor of this Territory for 
that purpose. 

3. If acknowledged or proved without the United States, by 
some judge or clerk of any Court of any State, Kingdom, or Em 
pire having a seal, or by any notary public therein, or by any 
minister, commissioner, or consul of the United States appointed 
to reside therein. 

. Every officer who shall take the proof or acknowledgment of 
any conveyance affecting any real estate, shall grant a certificate 
thereof, and cause such certificate to be indorsed or annexed to 
such conveyance. Such certificate shall be : 

1. When granted by any judge or clerk — under the hand of such 
judge or clerk. 

2. When granted by an officer who has a seal of office — under 
the hand and official seal of such officer. 

The certificate of such acknowledgment shall state the fact of 
acknowledgment, and that the person making the same was person- 
ally known to the officer granting the certificate to be the person 
whose name is subscribed to the conveyance as a party thereto, or 
was proved to be such by the oath or affirmation of a credible Avit- 
ness, whose name shall be inserted in the certificate. 

A married woman may convey her real estate, her husband join- 
ino- in the conveyance. No acknowledgment to be made by a 
married woman unless she be personally known to the officer taking 
tha same to be the person whose name is subscribed to such convey- 
ance as a party thereto, or shall be proved to be such by a credible 
witness ; nor unless such married woman shall be made acquainted 
with the contents of such conveyance, and shall ackno^vledge on an 
examination, apart from and without the hearing of her husband, 
that she executed the same freely and voluntarily, without fear or 
compulsion, or undue influence of her husband, and that she does 
not wish to retract the execution of the same. 



Chaps. 14, 15.] ARIZONA. 289 



Chapter XIV. 

MARRIED WOMEN. 

All property, both real and personal, of the wife, owned by her 
before marriage, and that acquired afterwards by gift, bequest, de- 
vise, or descent, shall be her separate property, and is not subject 
to the debts of her husband. 

All property acquired after marriage, by either husband or 
wife, except such as may be acquired by gift, bequest, devise, or 
descent, shall be common property. 

The separate property of the husband is not liable for the debts 
of the wife contracted before marriage, but the separate property 
of the wife shall be and continue liable for all such debts. 



Chapter XV. 

CHATTEL MORTGAGES. 

Chattel mortgages may be made on the following property, viz : 
Upholstery and furniture used in hotels and public boarding 
houses, when mortgaged to secure the purchase money of the iden- 
tical articles mortgaged, and not otherwise ; saw mill, grist mill, 
and steamboat machinery ; tools and machinery used by machin- 
ists, foundry men, and other mechanics ; steam boilers, steam 
engines, locomotives, engines, and the rolling stock of railroads ; 
printing presses and other printing material ; instruments and 
chests of a surgeon, physician, or dentist ; libraries of all persons ; 
19 



290 ARIZONA. [Part 11. 

machinery and apparatus for mining purposes ; growing crops, 
grain in store or field ; teams and implements pertaining to farm- 
ing ; stock of all kinds on farm. 

No chattel mortgage made shall have any leg^l force or effect, 
(except between the parties thereto) unless the residence of the 
mortgagor and mortgagee, their profession, trade, or occupation, 
the sum to be secured, the rate of interest to be paid, when and 
where payable, shall be set out in the mortgage ; and the mort- 
gagor and mortgagee shall make affidavit that the mortgage is 
bona fide, and without any design to defraud or delay creditors, 
which affidavit shall be attached to such mortgage. 

Mortgage not valid as to third parties, unless duly recorded, or 
unless the mortgagee receives and retains the actual possession of 
the property. 



Chapter XVI . 

INTEREST. 

When there is no express agreement fixing a different rate of 
interest, interest shall be allowed at the rate of ten per cent, per 
annum, on all moneys after they become due on any bond, bill, 
promissory note, or other instrument of writing, or any judgment 
recovered before any Court in this Territory for money lent, for 
money due on the settlement of accounts from the day on which 
the balance is ascertained, and for money received for the use of 
another. 

Parties may agree, in writing, for the payment of any rate of 
interest whatever on money due or to become due on any contract ; 
any judgment rendered on such contract shall conform thereto, and 
shall bear the interest agreed upon by the parties, and which shall 
be specified in the judgment. 

Parties may agree, in writing, to compound interest. 



Chap. 17.] ARIZONA. 291 



Chapter XVII. 

BILLS OF EXCHANGE. 

Three days' grace allowed on notes and bills, except sight drafts. 

The rate of damages to be allowed and paid upon the usual 
protest for the non-payment of bills of exchange, drawn or 
negotiated within this Territory, shall be as follows : 

1. If such bill shall have been drawn upon any person or 
persons in any of the United States or Territories east of the 
Rocky Mountains, fifteen dollars upon the hundred upon the 
principal sum specified in such bill. 

2. If such bill shall have been drawn on any person or persons 
in any port or place in Europe or any foreign country, twenty 
dollars upon the hundred upon the principal sum specified in such 
bill. 

Such damages shall be in lieu of interest, charges of protest, 
and all other charges incurred previous to and at the time of 
giving notice of non-payment ; but the holder of such bill shall be- 
■ entitled to demand and recover lawful interest upon the aggregate 
amount of the principal sum specified in such bill and of the 
damages thereon, from the time notice of protest for non-payment 
shall have been given, and payment of such principal sum shall 
have been demanded. 



Part XII. 



BRITISH COLUMBIA 



PREPARED EXPRESSLY FOR THIS WORK BYM. W. T. DRAKE, VICTORIA. 



Chapter I. 

COURTS— THEIR JURISDICTION AND TERMS. 

The Supreme Court is presided over by a chief justice and two 
pusne judges. This Court exercises a legal and equitable juris- 
diction in all matters. It has sole control over the estate of infants, 
lunatics and deceased persons, and claims a jurisdiction in divorce 
and matrimonial causes. The admiralty jurisdiction of the Prov- 
ince is vested in the chief justice alone. It is the Court of Ap- 
peal from all inferior tribunals, and from it there is an appeal to 
the Supreme Court of Canada and Privy Council of England. 

The judges also sit as judges of assize for the trial of criminals. 

The Court holds three terms annually for the purpose of dispos- 
ing of law points reserved at trials, for hearing motions for new 
trials, appeals, special cases, etc., etc. These sittings are held ^ 
Victoria, and the terms are held in February, April, and No- 
vember. 



294 ' BRITISH COLUMBIA. [Part 12. 

For matters of procedure the judges sit constantly. 

The Assize Courts are held three times a year, for the trial of 
prisoners and civil causes with a jury. The Assize Courts are 
held all through the Province, the judges going on circuit for the 
purpose. 

All matters not jury cases are disposed of by the Court on ap- 
pUcation. 

The County Court is held for the trial of actions of debt or 
damage up to $500. Actions of ejectment, libel, false imprison- 
ment, and some others, are excluded from the cognizance of these 
courts. 

This Court is held every month, and disposes of the cases brought 
before it without pleadings, and in a summary and expeditious 
manner. The province is divided into six districts for this purpose. 

The justices of the peace have no civil jurisdiction. All prisoners 
have to be committed by the justices before they can be tried. At 
the assizes, and after committal, the case goes before the grand 
jury, and if a true bill is found the prisoner is put on his trial ; if 
no bill is found he is at once discharged. 

The municipalities have also a limited jurisdiction for enforcing 
their by-laws. 



Chapter II. 

COMMENCEMENT OF SUITS. 

Civil suits in the Supreme Court are commenced by writ of sum- 
mons, to which the defendant has to appear in eight days ; if he 
fails to appear after due service, the plaintiff signs judgment for 
hia debt ; if he appears, the plaintiff proceeds to state his cause of 
action in a pleading called a declaration, to which the defendant re- 
plies by a plea, and in the majority of cases the action being thus 



Chap. 3.] BRITISH COLUMBIA. • 295 

put in issue is set down for trial ; but any neglect of the defend- 
ant to proceed according to the rule, subjects him to the penalty 
of having judgment signed against him. In some cases the plead- 
ings extend considerably beyond this, until at last they arrive at 
issue and are then ripe for trial. 

Sometimes, by consent, a special case is stated and tried by the 
judge without a jury. In any case, if both parties consent, the 
judge alone can dispose of the case without a jury. 

In actions on bills of exchange and promissory notes, if brought 
within six months of the due date of the bill or note, the defendants 
are not allowed to defend except on special ground shown in affi- 
davits. 

All writs must be personally served, unless the defendant is keep- 
ing out of the way to avoid service, and then the Court allows sub- 
stituted service. If the defendant is abroad, whether a foreigner 
or not, special forms of writ are provided, but the service must be 
personal. 

In equity cases proceedings are commenced by bill of complaint, 
being a narrative of the circumstances on which the plaintiff relies 
for relief. The defendant has a month to answer, and after answer 
there are several different modes of bringing the suit to a hearing. 
The evidence is generally taken on affidavit, but may be viva voce. 
A single judge disposes of equity cases without a jury. 

Equity suits can be disposed of at any place the plaintiff fixes ; 
liable to be changed on good cause shown. 



Chapter III, 



LIMITATIONS OF ACTIONS. 

Six years is the limitation for all simple contract debts ; twenty 
years for all specialty debts. In case the cause of action arose in 
a foreign country, the defendant may plead the statute of hmita- 



296 BRITISH COLUMBIA. [Part 12. 

tions o.f such country as a bar. A foreign judgment is placed on 
the same footing as a simple contract debt, and has to be sued 
within the same time. 



Chapter IV. 



ATTACHMENTS— ARREST IN CIVIL ACTIONS. 

Attachments are not allowed except under the Insolvency Act, 
and then it practically binds the property for the benefit of all 
creditors. ^ 

Arrest in civil actions is in practice only resorted to for the pur- 
pose of compelling a defendant who is about to leave the jurisdic- 
tion to give security for the alleged debt. The sheriff keeps him 
in charge until he has put in security, or until the trial of the 
writ. There is no imprisonment for debt. But the County Court 
judges have power of committal for disobedience of orders for pay- 
ment of money. 



Chapter V. 



JUDGMENTS AND JUDGMENT LIENS. 

A judgment binds the lands of a debtor when registered. It 
also enables a creditor to seize the goods of his debtor, or to com- 
pel payment of debts due to the debtor, to himself, under what are 



Chaps. 6, 7.] BRITISH COLUMBIA. 297 

called garnishee proceedings ; but a judgment does not bind the 
personal property of the debtor until the writ of execution is in the 
hands of the sheriff. 



Chapter VI. 



EXECUTIONS, EXEMPTIONS, KEDEMPTION, SALE. 

Executions are enforced against the land and personalty of the 
debtor. 

The debtor is entitled to an exemption of five hundred dollars in 
personalty. 

For homestead exemption, see " Homesteads." 

The debtor may redeem his property at any time before sale. 
Personal property has to be sold without any delay, and by public 
auction. Real property is advertised thirty days. 



Chapter YII. 



SECURITY FOR COSTS 



Is always required when the plaintiff is resident out of the juris- 
diction of the Court, in an amount of five hundred dollars ; but if 
within the jurisdiction, he may commence actions in forma pau- 
peris, if he is not in a position to pay fees. 



298 BRITISH COLUMBIA. [Part 12. 



Chapter VIII, 

APPEALS 

Are allowed from the County Courts to the Supreme Court, if 
made within forty-eight hours after the decision is objected to ; 
from the Police and Magistrate Courts to the Supreme Court, if 
applied for in four days; from the Supreme Court to the Privy 
Council of England, or the Supreme Court of Canada, if the 
amount in dispute is over fifteen hundred dollars. Security re- 
quired is five hundred dollars. 



Chapter IX. 



ESTATES OF DECEASED PERSONS. 

Intestate estates, where there is no next of kin or creditor who 
desires administration, are managed by the registrar of the Supreme 
Court as official administrator. There is no statuteable time for 
sending in claims, but every estate is advertised and a time fixed. 
The claims have to be sworn to — if from a foreign country, before a 
notary public, attested by the British ambassador, consul, or charge 
d'affaires. Twelve months is the time allowed to settle the estate, 
whether the deceased died intestate or not. If the deceased left a 
will legally executed, his executors manage the estate without 
filing any security, and only file accounts at the end of the twelve 
months. If they neglect their duty, the devisees have a legal re- 
medy, but the Court does not control them. 



Chaps. 10-12.] BRITISH COLUMBIA. 299 



Chapter X. 

HOMESTEADS. 

Land to the value of twenty-five hundred dollars may be home» 
stead, if duly registered as such at a time when the owner was free 
from debt. 



Chapter XI. 



DEPOSITIONS. 



For matters in civil suits, evidence abroad is generally taken by 
commissioners appointed by a judge of the Supreme Court. In 
other matters, affidavits can be taken before any minister, ambassa- 
dor, consul, vice-consul, or consular agent, and if there is no one 
representing these functionaries, then before a notary public duly 
certified to be such by the Governor or Secretary of State. 



Chapter XII. 



JUDICIAL RECORDS—ACKNOWLEDGMENTS. 

Judicial records of foreign States can be proved by examined 
copies, sealed with the seal of the State if relating to State docu- 
ments, or the seal of the Court if relating to judicial records. 

Acknowledgments of deeds can be taken before a notary pub- 
Uc, duly certified to be such by the British consul. 



300 BRITISH COLUMBIA. [Part 12. 



Chapter XIII. 



LIMITED PARTNERSHIPS. 

Joint stock companies can limit the liability of their sharehold- 
ers to the amount subscribed for by -each, by registeriBg under the 
statute. 

The law of private partnerships now allows a person to invest 
money in a business concern and receive a share of the profits, with- 
out being liable as a partner. 



Chapter XIV, 



MARRIED WOMEN 

Can invest the money earned by any trade or occupation, and 
the same is free from the debts, control or engagements of the hus- 
band ; and landed property, held before marriage or acquired sub- 
sequent thereto, can be dealt with by a married woman as if she 
were a femme sole. 



Chaps. 15, 16.] BRITISH Columbia. 301 



Chapter XV. 

MORTGAGES. 

[I Chattel mortgages must be registered within twenty-one days 
after execution, and an affidavit filed of the day and date of execu- 
tion, in order to protect the property from execution creditors of the 
grantor. A mortgage unregistered is good between the parties, and 
if the mortgagee take the property into his own custody an execu- 
tion creditor cannot seize it. Furniture, goods, merchandise, etc., 
can be mortgaged. Farming stock and crops are not subject to the 
Act. 

Mortgages of Land. 

A mortgagee of land is a specialty creditor ; he can sue his 
debtor for the amount due, sell the mortgage property, or foreclose 
the mortgage ; if he sells the mortgage property, it is doubtful 
whether his remedy against the mortgagor has not gone, in case 
the sale fails to realize the whole amount due. 



Chapter XVI. 



INTEREST AND USURY. 



The legal rate of interest is twelve per cent, per annum. All 
judgments carry this rate ; so do accounts, after notice that inter- 
est will be charged ; but any higher rate of interest is perfectly 
legal, as there are no usury laws in force. 



302 BRITISH COLUMBIA. [Part 12. 

Chapter XYII. 

LAND LAWS. 

Persons can acquire land (three hundred and twenty acres) by 
pre-emption, and on a survey being made, a grant in fee simple is 
issued without charge. 



INDEX. 



INDEX. 



Part XI. 



Page. 

Acknowledgments 287 

Affidavits 287 

Answer — Time Allowed ■•. 275 

Arrest in Civil Actions 281 

Attachments 280 

Bills of Exchange , 291 

Chattel Mortgages 289 

Commencement of Suits 275 

Courts 273 

*♦ Terms of 274 

" Their Jurisdiction • .273 

" Where held...... 274 

Deceased Persons — Estates of 285 

Depositions . .287 

Estates of Deceased Persons 285 

Examination of Judgment Debtor 284 

Executions 283 

Exemptions from Execution 283 

Interest 290 

Judgments 282 

Judgment Liens 282 

Jurisdiction of Courts 273 

Liens of Judgments 282 

Limitation of Actions 278 

Married Women 289 

20 



306 INDEX. 

Page. 

Mortgages of Personal Property -, 289 

Place of Trial of (.ivil Actions 276 

Proceedings Supplementary to Execution 284 

Promissory Notes — Days of Grace , 291 

Redemption 283 

Sale — Under Execution , 283 

Terms of Courts 274 

Time Allowed to Answer 275 

Trial— Place of ...276 



ATTORNEYS. 
Part I. 



Arizona , " 18 

British. Columbia 18 

California 11 

Idaho ,...' 17 

Montana 17 

Nevada 15 

Oregon '. 15 

Utah 16 

Washington 16 

Wyoming 18 



BRITISH COLUMBIA. 
Part XII. 



Acknowledgments .299 

Affidavits 299 

Appeals 298 

Arrest in Civil Actions 296 

Attachments 296 



INDEX. 307 

Page. 

Chattel Mortgages 301 

Commenoement of Suits 294 

Courts 293 

" Terms of 293 

" Their Jurisdiction ; 293 

Deceased Persons — Estates of 298 

Depositions 299' 

Estates of Deceased Persons 298 

Executions 297 

Exemptions from Execution 297 

Homesteads 299 

Interest 301 

Joint Stock Companies 300 

Judgments 296 

Judgment Liens .296 

Judicial Records 299 

Jurisdiction of Courts 293 

Land Laws 302 

Liens of Judgments , . . 296 

Limited Partnerships 300 

Limitations of Actions 295 

Married Women , ^ ... 300 

Mortgages 301 

Mortgages of Land , 301 

Partnerships — Limited .' 300 

Pleadings 294-295 

Redemption 297 . 

Sale— Under Execution 297 

Security for. Costs 297 

Terms of Courts 293 

Time for Appearance 294 

Usury 301 



C^LIFORNI^. 
Part III. 



Acknowledgments 102 

Acknowledgments — Eorms of 103 

Affidavits 99 

Agent and Principal 129 



308 INDEX. 

Page. 

Answer — Time Allowed ' 43 

Answer — Time Allowed in Justice's Court 44 

Appeals in General , 77 

Appeals from District Court 79 

Appeals from County Courts i 79 

Appeals from Probate Courts 80 

Appeals from Justices' or Police Courts * 80 

Arbitrations 95 

Arrest and Bail • 58 

Attachments 51 

Assignment without Prejudice to Set-off or Defense 42 

Bail — see Arrest and Bail 58 

Bills of Exchange — see Negotiable Instruments 121 

Bills of Lading .112 

Certificate of Sale of Real Estate 71 

Chattel Mortgages 114 

Claim and Delivery of Personal Property 56 

Compromise — Proceedings on offer of Defendant . , 64 

Commencement of Actions •. "42 

Common Carriers 113 

Complaint, on Whom to be Served 43 

Confession of Judgments 62 

Contracts 120 

Corporations 97 

Costs 76 

Courts 29 

** their Jurisdiction 28 

" When and Where Held 32 

Currency Judgments 64 

Deceased Persons— Estates of 83 

Depositions 99 

Descents 88 

Estates of Deceased Persons 83 

Examination of Judgment Debtor 74 

Executions 67 

Executions — Proceedings Supplementary to 74 

Exemptions from Execution 68 

Form of Civil Actions 46 

Cold Coin Judgments 64 

Guaranty and Suretyship 117 

Homesteads 95 

Injunctions 60 

Interest 112 

Joint Debtors — Proceedings against 63 

Judgments 60 

Judgments after Verdict 63 

Judgments by Confession 62 

Judgment by Default in Justice's Court 65 



INDEX. . 309 

Page. 

Judgments in Justices' Courts. 65 

Judgments in Justices' Courts other than by Default 66 

Judgments in Replevin ^ 64 

Judgment Liens 65 

Judgment Liens, Justices' Courts 67 

Judgment on Proceedings without Action 63 

Judgment on Fail tire to Answer 61 

Judicial Records 100 

Judicial Records — How Proved 101 

Jurisdiction of Courts 29 

Letter of Credit 119 

Liens for Salaries and Wages 94 

Liens of Mechanics and others upon Real Estate 91 

Limitation of Civil Actions 39 

Married Women 108 

Mechanics' Liens 91 

Minors 110 

Mode of taking Testimony of Witnesses 99 

Mortgages of Personal Property 114 

Negotiable Instruments 121 

New Trials 82 

Parties to Suits 42 

Partnerships 105 

Personal Property — Mortgages of 114 

Place of Trial, Civil Actions 35 

Pleadings 46 

Pleadings — Provisions in Justices' Courts 49 

Pledge 116 

Principal and Agent 129 

Proceedings on Offer of Defendant to Compromise 64 

Proceedings Supplementary to Execution 74 

Promissory Notes, see Negotiable Instruments 121 

Publication — Service by ' 44-45 

Redemption 71 

Replevin — see Claim and Delivery. 56 

Replevin — Judgment in 64 

Salaries — Liens for , 94 

Sale 119 

Sale of Real Estate — when Absolute or not 71 

Sale of Real Estate — Certificate of 71 

Sale on Execution 70 

Security for Costs 76 

Service by Publication 44-45 

Sole Traders 109 

Stoppage in Transit Ill 

Submission of Controversy Without Action 63 

Summons — on Whom to be Served 43 

■Summons — on Whom to be Served in Justices' Courts 45 



310 , INDEX. 



Page. 

Summons — Service When to be Made in Justices' Courts 45 

Summons — Service by Whom Made in Justices' Courts 45 

Summons — Who may Serve 43 

Summons — ^Within What Time to Issue 43 

Suretyships 117 

Terms of Courts 32 

Circuit Court U. S 35 

District Courts 33 

District Court U. S 35 

Justices' Courts r 35 

Probate and County Courts , 34 

Supreme Court 32 

Testimony of Witnesses by Affidavit 99 

Time of Holding Courts 32 

Trial of Civil Action— When to be Tried 35 

Verification of Pleadino^s * 49 



Part VII. 



Acknowledgments 215 

Affidavits— Before Whom to be Taken 220 

Answer — Time Allowed 199 

Appeals 209 

Arrest in Civil Actions 203 

Attachments 202 

Chattel Mortgages 219 

Commencement of Actions 198 

Corporations 218 

Courts ^ 197 

Courts— Terms of 197 

Courts — Their Jurisdiction 197 

Deceased Persons — Estates of 210 

Depositions 213 

Estates of Deceased Persons 210 

Examination of Judgment Debtor 208 

Exect»tions 205 

Exemptions from Execution ; 205 

Homesteads 210 



INDEX. 311 

Page. 

Interest and Usury 219 

Judgments 204 

Judgment Liens 204 

Judicial Records .214 

Jurisdiction of Courts 197 

Liens of Judgments 204 

Limitation of Civil Actions 200 

Limited Partnerships 216 

Married Women .• 217 

Mortgages of Personal Property 219 

Partnerships — Limited 216 

Place of Trial of Civil Actions 199 

Proceedings Supplementary to Execution 208 

Redemption 207 

Sales — Under Execution 207 

Security for Costs 208 

Sole Traders 220 

Terms of Courts 197 

Time allowed to Answer 199 

Trial— Place of 199 

Usurv 219 



JURISDICTION OF U. S. COURTS AND BANKRUPTCY.^ 



Part II. 



Acts of Bankruptcy — Involuntary 21 

Bankruptcy 21 

Composition 27 

Courts 19 

Courts — Their Jurisdiction 19 

Debts— Proof of 24 

Discharge '. 25 

Fraudulent Conveyances 22 

Involiintary Bankruptcy — Acts of 21 

Judgment Lien ^25 

Jurisdiction of Courts 19 

Liens 25 

Percentage to be Paid by Bankrupt 23 

Petition — Verification of 22 

Petition— Who to Join In .- 22 



312 INDEX. 

Page. 

Preferences and Fraudulent Conveyances 22 

Proof of Debts 24 

Verification of Petition 22 

Voluntary Bankruptcy — Who may File Petition 22 



Part IX. 



Acknowledgments , , 249 

Answer — Time Allowed 242 

Appeals 247 

Arrest in Civil Actions 245 

Attachments 244 

Chattel Mortgages 251 

Corporations 250 

Courts 241 

Courts— Terms of 241 

^ Courts and their Jurisdiction 241 

Deceased Persons — Estates of ; 248 

Depositions 248 

Estates of Deceased Persons 248 

Examination of Judgment Debtor. 247 

Executions 245 

Exemption from Execution 245 

Homesteads 248 

Interest , 251 

Judgment Liens 245 

Judicial Records 249 

Jurisdiction of Courts 241 

Liens of Judgments 245 

Limitation of Actions 243 

Limited Partnerships 249 

Married Women 250 

Partnership Limited 249 

Place of Trial of Civil Actions 242 

Proceedings Supplementary to Execution 247 

Redemption 246 

Sale under Execution 246 

Security for Costs ; 247 

Terms of Courts 241 



INDEX. 313 

Page. 

Time allowed to Answer , 242 

Trial, Place of 242 

Usury 251 



Part IV. 



Acknowledgroents 149 

AfiBdavits — before "Whom to be Taken 150 

Answer — Time Allowed 134 

Appeals 142 

Arrest in Civil Actions ^ 137 

Attachments 137 

Bills of Exchange 154 

Chattel Mortgages 153 

Courts 131 

Courts— Terms of 1 31 

Courts — Their Jurisdiction 131 

Corporations 152 

Deceased Persons — Estates of 143 

Depositions .• 145 

Depositions Taken Out of the State 147 

Estates of Deceased Persons 143 

Examination of Judgment Debtor 141 

Exemptions from Execution 139 

Executions 139 

Homesteads 144 

Interest and Usury 153 

Jurisdiction of Courts 131 

Judgments and Judgment Liens 138 

Judicial Records — How Proved 148 

Liens of Judgments 138 

Limitation of Actions . . 135 

Limited Partnerships 151 

Married Women 152 

Mortgages of Personal Property 153 

Mortgages of Real Property 154 

Partnerships — Limited 151 

Place of Trial : 134 

Proceedings Supplementary to Executions 141 

21 



314 INDEX. 

Page. 

Promissory Notes 154 

Publication — Service by 134 

Redemption 141 

Sale under Execution 141 

Security for Costs 142 

Service bj Publication ' 134 

Terms of Courts 131 

Time allowed to Answer 134 

Trial— Place of ". , .134 

Usury ■ 153 

Witnesses 145 



OREGON. 
Part Y. 



Acknowledgments 171 

Actions — Commencement of 158 

Actions — ^Place of Trial 159 

Answer— Within What Time , 158 

Appeals 165 

Arrest in Civil Actions 161 

Attachments 161 

Chattel Mortgages .♦ 174 

Commencement of Suits 158 

Courts and Jurisdiction 155 

Courts — Terms of 156 

Corporations 174 

Deceased Persons — Estates of 166 

Depositions 169 

Descent of Personal Property 168 

Descent of Real Property 167 

Dower 168 

Estates of Deceased Persons 166 

Examination of Judgment Debtor 164 

Executions 163 

Exemptions from Execution 163 

Homesteads ;..... 169 

Interest..., .... , 175 

Judgment Liens 162 

Judicial Records 171 



INDEX. 316 

Page. 

Jurisdiction of Courts 155 

Liens of Judgments 162 

Limitation of Actions : 159 

Limited Partnerships 172 

Married Women 173 

Mortgages of Personal Property 174 

Partnerships — Limited 172 

Place of Trial of Civil Actions 159 

Proceedings Supplementary to Execution 164 

Redemption 163 

Sale — Under Execution 164 

Security for Costs 164 

Suits — Commencement of • 158 

Siimmons 158 

Terms of Courts ' 156 

Usury 175 



Part VI. 



Acknowledgments. 192 

Answer — Time Allowed 178 

Appeals 186 

Arrest in Civil Actions 180 

Attachments .• 179 

Chattel Mortgages 195 

Commencement of Suits 178 

Corporations 194 

Courts 177 

Courts— Place of Holding 178 

Courts— Terms of ; 178 

Courts — Their Jurisdiction. : 177 

Deceased Persons — Estates of 187 

Depositions 189 

Estates of Deceased Persons 187 

Examination of Judgment Debtor 184 

Executions 182 

Executions — Proceedings in Aid of 184 

Exemptions • 182 

Homesteads 188 



316 INDEX. 

Page, 

Interest and Usury 195 

Judgments 181 

Judgment Liens 181 

Judicial Records — How Proved 191 

Jurisdiction of Courts 177 

Liens of Judgment 181 

Limitation of Actions. 179 

Married Women 194 

Mortgages of Personal Property ,195 

Partnerships 193 

Partners — How may be Sued, &c ; 193 

Partners — Liability of Private Property for Firm Debts 193 

Partners — Assignment and Effect 193 

Proceedings in Aid of Executions 184 

Redemption 184 

Sale — Under Execution 182 

Security for Costs .185 

Terms of Courts 178 

Time Allowed to Plead or Answer 178 

Usury 195 



WASHINGTON TERRITORY. 
Part X. 



Acknowledgments ^ 269 

Answer — Time Allowed 255-256 

Appeals and Writs of Error 266 

Arrest in Civil Actions 260 

Attachments 258 

Chattel Mortgages 272 

Commencement of Suits 255 

Corporations 271 

Courts .* 253 

Courts — Terms of 254 

Courts — Their Jurisdiction 253 

Courts— Where Held 254 

Deceased Persons — Estates of 266 

Depositions 268 

Estates of Deceased Persons 266 



INDEX. 317 

Page. 

Examination of Judgment Debtor 265 

Executions 2G2 

Exempuiors fiom Execution . . 2G3 

Homesteads . . . , .^ •*. 267 

Interest ". 272 

Judgments 261 

Judgment Liens 261 

Judicial Records of other States — How Proved 269 

Jurisdiction of Courts 253 

Liens of Judgments ' 261 

Limitation of Actions • 257 

Limited Partnerships 27 1 

Married Women 271 

Mortgages of Personal Property 272 

Partnerships — Limited 271 

Place, of Trial— Civil Action ". 256 

Proceedings Supplementary to Execution 265 

Redemption 264 

Sale — Under Execution 264 

Security for Costs 265 

Sole Traders 271 

Terms of Courts 254 

Time Allowed to Answer 256 

Trial— Place of ; 256 

Writs of Error • 266 



Part VIII. 



Acknowledgments 236 

Answer — Time Allowed 224 

Appeals 231 

Arrest in Civil Actions 227 

Attachments ■ 226 

Chattel Mortgages ^ 238 

Commencement of Actions 224 

Courts 223 

Courts — Terms of and Where Held 224 

Courts — Their Jurisdiction 223 

Deceased Persons — Estates of 231 



318 INDEX. 

Page. 

Depositions 235 

Descents and Distribution of Property 232 

Estates of Deceased Persons 231 

Examination of Judgment Debtor 230 

Executions ? * 228 

Exemptions from Execution 229 

Interest 239 

Judgment Liens 228 

Judicial Records — * , 236 

Jurisdiction of Courts 223 

Liens of Judgments 228 

Limitations of Actions 225 

Limited Partnerships , 237 

Married Women 238 

Mortgages of Personal Property , 238 

Partnerships — Limited . . '. 237 

Place of Trial of Civil Actions 225 

Proceedings in Aid of Executions 230 

Redemption : 229 

Sale under Execution 229 

Security for Costs , , ' 230 

Terms of Courts 224 

Time to Answer . 224 

Trial— Place of ; 225 

Usxiry 239 



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